In re Claim of Kardisco, 011519 COWC, 4-931-411

Docket Nº:W.C. 4-931-411
Case Date:January 15, 2019
Court:Colorado
 
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IN THE MATTER OF THE CLAIM OF: DYLLON KARDISCO, Claimant,
v.
RED SKY CONSTRUCTION INC, Employer,
and
PINNACOL ASSURANCE, Insurer, Respondents.
W.C. No. 4-931-411
Colorado Workers Compensation
Industrial Claim Appeals Office
January 15, 2019
          THE FRICKEY LAW FIRM, Attn: JANET L FRICKEY ESQ, (For Claimant)           RUEGSEGGER SIMONS SMITH & STERN LLC, Attn: KEVIN M CARLOCK ESQ, (For Respondents)           FINAL ORDER          The respondents seek review of an order of the Director of the Division of Workers’ Compensation (Director) dated September 6, 2018, insofar as it granted the claimant temporary total disability (TTD) benefits from March 27, 2018, to April 19, 2018, totaling $1,035.00. We affirm.          The Director made the following pertinent findings of fact. The claimant suffered a compensable injury on October 9, 2013. The respondents filed a Final Admission of Liability (FAL) on February 17, 2017, indicating a maximum medical improvement (MMI) date of December 18, 2015. The respondents admitted to a 30% whole person impairment with a total value of $125,779.15.          The claimant filed an application for hearing on the issue of permanent total disability (PTD) benefits, which was held in abeyance by stipulation of the parties.          The claimant then signed a vocational rehabilitation plan on May 16, 2017. Two days later, the parties stipulated that the respondents would pay all remaining permanent partial disability (PPD) benefits in a lump sum, without discount. On June 5, 2017, the respondents filed a general admission of liability (GAL) admitting for temporary total disability (TTD) benefits from February 14, 2017, ongoing.          The claimant participated in the vocational rehabilitation plan, which was directed primarily at obtaining a GED. The claimant completed the GED program in early 2018. The respondents then notified the claimant on March 27, 2018, that they no longer would provide vocational rehabilitation services. The respondents filed a GAL dated April 5, 2018, which purported to terminate TTD benefits as of March 26, 2018.          The parties subsequently attended a prehearing conference to address the validity of the respondents’ GAL. On May 1, 2018, a prehearing ALJ concluded the admission improperly terminated temporary benefits and declared it void. The same day the prehearing order was issued, the respondents filed an FAL indicating that temporary disability benefits terminated March 26, 2018, upon termination of vocational rehabilitation and a pleading captioned “NOTICE RE: C.R.S. §8-42-105(1).” The respondents contended the April 5, 2018, GAL was sufficient to provide notice of termination.          The claimant then filed a motion seeking an order from the Director compelling the respondents to continue paying TTD benefits until a hearing could be held regarding the claimant’s entitlement to any additional benefits. The respondents argued that the statutory cap on combined TTD and PPD benefits enunciated in §8-42-107.5, C.R.S. barred any further payment of TTD benefits and that the termination of TTD benefits via a GAL was appropriate.          On June 12, 2018, the Director entered his order denying the claimant’s motion. While the Director held that there was no authority to grant the requested relief sought by the claimant, he nevertheless held that the respondents had improperly terminated TTD benefits by failing to provide the required 14 days’ written notice set forth in §8-42-105(1), C.R.S. before terminating such benefits. In his order, the Director explained that vocational rehabilitation is permitted by §8-42-111(3), C.R.S., which allows the respondents to offer such benefits in lieu of PTD benefits. He further explained that in cases where vocational rehabilitation is offered, the injured worker is obligated to accept, and the...

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