COLO. COMP. INS. v. INDUS. CLAIM APPEALS, No. 99CA1624.

• Decision Date: 22 June 2000
• Docket Number: No. 99CA1624.
• Citation: 18 P.3d 790
• Parties: COLORADO COMPENSATION INSURANCE AUTHORITY, d/b/a Pinnacol Assurance; and Delivery by Design, LLC., Petitioners, v. The INDUSTRIAL CLAIM APPEALS OFFICE OF the STATE OF COLORADO and Jason Withrow, Respondents.
• Court: Colorado Court of Appeals

18 P.3d 790

COLORADO COMPENSATION INSURANCE AUTHORITY, d/b/a Pinnacol Assurance; and Delivery by Design, LLC., Petitioners, v. The INDUSTRIAL CLAIM APPEALS OFFICE OF the STATE OF COLORADO and Jason Withrow, Respondents.

No. 99CA1624.

Colorado Court of Appeals, Div. V.

June 22, 2000.

Rehearing Denied July 27, 2000.

Certiorari Denied March 12, 2001.¹

Curt Kriksciun, Denver, Colorado, for Petitioners Colorado Compensation Insurance Authority, d/b/a Pinnacol Assurance; and Delivery by Design, LLC.

Ken Salazar, Attorney General, John D. Baird, First Assistant Attorney General, Denver, Colorado, for Respondent Industrial Claim Appeals Office.

No Appearance for Respondent Jason Withrow.

Opinion by Judge RULAND.

The sole issue in this workers' compensation case is whether an insurer may file an admission of liability agreeing to pay temporary disability payments for only a limited or "closed" period without complying with other statutory and regulatory provisions governing the termination of such benefits. We conclude that an insurer may not limit its liability in this manner. We therefore affirm the order of the Industrial Claim Appeals Office (Panel) requiring the employer, Delivery by Design, LLC., and its insurer, Colorado Compensation Insurance Authority, (collectively CCIA) to reinstate temporary total disability (TTD) benefits payable to Jason Withrow (claimant).

Claimant suffered a work-related injury in December 1998. CCIA filed a general admission of liability for the payment of TTD benefits from January 3, 1999, through January 12, 1999. The admission contained a notation that: "CCIA admits to a closed period of wage loss, between DOI [date of injury] and the date of return to school—at which his contract of hire would end."

The Director of the Division of Workers' Compensation (director) determined that an insurer may terminate temporary disability benefits only in accordance with Department of Labor & Employment Rule IX(C)(1)(a)-(f), 7 Code Colo. Reg. 1101-3 (Rule IX), or § 8-42-105(3)(a) through (d), C.R.S.1999. The director also determined that CCIA's general admission did not comply with the rule or the statute. Therefore, CCIA was ordered to reinstate TTD benefits until it complied with Rule IX or obtained a proper order terminating benefits. The Panel affirmed.

CCIA contends that the Panel erred in concluding that an employer may not admit to liability for temporary disability benefits for a closed period of time. We are not persuaded.

Temporary disability benefits are payable if an industrial injury causes a disability and if, as a result, the claimant suffers a temporary wage loss. Section 8-42-103(1), C.R.S.1999. Further, the claimant bears the initial burden to prove the entitlement to those benefits. PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo.1995).

An insurer has no legal duty to admit liability for temporary disability benefits. See Allison v. Industrial Claim Appeals Office, 916 P.2d 623 (Colo.App.1995)

. However, by filing an admission, an insurer has, in effect, admitted that the claimant has sustained the burden of proving entitlement to temporary disability benefits. Once an insurer admits liability, it is bound by that admission and must pay accordingly. Cibola Construction v. Industrial Claim Appeals Office, 971 P.2d 666 (Colo.App.1998).

Section 8-42-105(3), C.R.S.1999, provides that a claimant's entitlement to TTD benefits will terminate upon the occurrence of any one of the following four events: (a) the employee reaches maximum medical improvement; (b) the employee returns to regular or modified employment; (c) the attending physician gives the employee a written release to return to regular employment; or (d) the employee is released to return to modified employment and the employer makes a written offer for such, but the employee fails to begin such employment. Bestway Concrete v. Industrial Claim Appeals Office, 984 P.2d 680 (Colo.App.1999). Rule IX(C)(1)(a)-(d) substantially mirrors these conditions for termination of temporary disability benefits.

Here, CCIA asserts that its general admission terminating temporary disability benefits after the closed period was based on claimant's return to school. However, a return to school is not a ground for the unilateral termination of temporary disability benefits under Rule IX or § 8-42-105(3). Rather, CCIA's assertion of this defense in the appropriate pleading creates a factual question which can be resolved only after a hearing. See A & R Concrete Construction v. Lightner, 759 P.2d 831 (Colo.App.1988)

; Department of Labor & Employment Rule IX(D), 7 Code Colo. Reg. 1101-3.

Contrary to CCIA's contention, in our view § 8-43-203(2)(b)(I), C.R.S.1999, does not authorize an admission of liability for a closed period. That section provides:

If the employer or, if insured, the employer's insurance carrier

...