Legalization of Marijuana in Colorado:

Employer Guidelines for Workers’ Compensation Claims

N. Elizabeth Quick, Esq.

On November 6, 2012, Colorado became the first State to legalize marijuana with the passage of Amendment 64. Under Amendment 64, persons over the age of twenty-one will be allowed to legally possess up to one ounce of marijuana[1]. However, the Amendment contains a provision for employers, subsection six (6). This provision states, “Nothing in this section is intended to require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale or growing of marijuana in the workplace or to affect the ability of employers to have policies restricting the use of marijuana by employees.”

Despite Colorado legislation, possession and growing of marijuana remains illegal under federal law, and is classified as a Schedule I Controlled Substance under the Federal Controlled Substances Act. Given the conflict between State and Federal Law, how do employers proceed? State laws which conflict with, or are contrary to, federal laws are invalid[2]. We anticipate substantial litigation regarding the constitutionality of Amendment 64, and the Department of Justice has pledged to challenge Amendment 64 in federal court. Given that Federal Law ultimately controls, we recommend all employers update, or implement, a “no tolerance” policy for drugs and alcohol.

While marijuana may be legal in Colorado, employers may still use consumption of marijuana as a basis for a safety rule violation or termination for cause in a workers’ compensation claim. The hallucinogenic agent in marijuana is THC, and can be detected at a level of 5ng/mL[3].  THC is stored in the body’s fat, making it possible to detect for up to 13 days[4]. However, only 20% of THC is detectible in a urine screen[5], as the THC has already passed through the body.  If an employer is randomly testing employees for drug use, we recommend urine screens as the standard protocol. The THC present in the drug screen will be sufficient to show use and support a termination for cause defense.

However, THC is also detectible in the blood, and blood tests will show the current levels of THC in the employee’s bloodstream; the level of THC intoxication (see footnote 5). While a toxicologist may testify regarding THC levels expected in a “recreational user” versus the THC levels present in a blood sample, there is currently no State recognized level of marijuana intoxication. Despite this oversight in regulation, we recommend employers require employees to submit to a blood test if an accident or safety rule violation has occurred. The practice of employer-required blood tests has repeatedly been upheld by the Courts[6].

To prove a safety rule violation, the employer and insurer must show the injury was caused by the employee’s marijuana use[7]. The blood sample will allow the toxicologist to testify regarding how the level of THC in the employee’s blood would have affected job performance at the time of the injury. Common signs of marijuana impairment include: distorted perceptions; impaired coordination; difficulty with thinking and problem solving; and problems with learning and memory[8].

In summary, despite the passage of Amendment 64, employers may continue to hold their employees accountable for marijuana use on the job through the safety rule violation and termination for cause provisions of the Workers’ Compensation Act. Please do not hesitate to contact our office so that we may provide additional guidance on this issue on a case by case basis.

Lee and Kinder, LLC are very excited to be certified as a Women’s Business Enterprise by the Women’s Business Enterprise Council (“WBENC”). As an advocate of women-owned businesses, the WBENC’s broad network will provide our law firm the opportunity to connect with many corporate entities interested in creating a diverse network of legal professionals. We look forward to providing our standard of legal representation to those in need of what we do best – quality, knowledgeable, and outstanding service in the areas of workers’ compensation defense and employment/insurance defense, all combined with integrity and pride in our ability to take care of our clients. We are very proud of our success as a women-owned business and pleased to be recognized by this very reputable and well-connected organization.

Coxen v. Laidlaw Transit, W.C. No. 4-674-208

The court held that counsel with a valid Power of Attorney has the power to stipulate to Average Weekly Wage. The court also held such a stipulation is not a settlement.

Claimant retained counsel after suffering an industrial injury. Claimant entered into a fee agreement that included a Power of Attorney provision which allowed the attorney to “act in the name and place of the claimant, and to perform every act necessary to be done for claimant.” The provision also included a clause prohibiting the attorney from settling the case without Claimant’s permission. Claimant’s attorney later stipulated to a figure for Claimant’s Average Weekly Wage. The case was closed

Claimant later sustained a worsening of condition and the case was reopened. With new counsel, Claimant argued that the prior stipulation was void because she alleged that her former attorney had no right to stipulate to her Average Weekly Wage. Claimant also asserted that the stipulation was void because it constituted a “settlement” prohibited in the fee agreement.

The court disagreed, holding that the clause allowing the attorney to act on Claimant’s behalf empowered the attorney to stipulate to Average Weekly Wage. The court also held that the stipulation did not violate the settlement-prohibition clause, because the stipulation was not a settlement within the meaning of the clause.

Rivera v. The Corcoran Company, W.C. No. 4-759-240

The court held that relying on the advice of the DIME unit in transmitting medical reports to a DIME physician does not constitute a violation of penalty Rule 11-6. The also court held that, for purposes of penalty Rule 11-7, a DIME physician’s request for a second opinion does not constitute additional treatment.

Claimant underwent a Division Independent Medical Examination after he sustained an admitted work-related injury. The DIME physician requested a second opinion regarding the necessity of a specific surgery before he could make any Maximum Medical Improvement (MMI) determination. The physician asserted that he would provide an addendum to his report after he received the surgical opinion. He also stated that if Claimant did not require surgery, he had reached MMI.

Claimant received a second surgical opinion, and the report was sent to the insurance adjuster, who had never dealt with a case involving a DIME addendum. Unsure how to transmit the report to the DIME physician, the adjuster contacted the DIME unit. The DIME unit told her to send the report directly to the physician as well as to the DIME unit and Claimant’s attorney. The adjuster complied.

Claimant objected and asserted penalties against Respondents for the adjuster’s alleged violation of Rule 11-7, which requires a follow-up IME if the original DIME physician recommends further treatment, and of Rule 11-6, which prohibits communication between the DIME physician and the parties unless approved by the Director or an ALJ.

The court concluded that Respondents had not violated either rule. The court held that the physician’s request for a second opinion did not constitute further treatment, so a follow-up IME was not required. The court also held that because there was no rule that applied to the specific circumstances, the adjuster acted objectively reasonably by contacting the DIME unit and sending the report according to their instructions.

Shickel v. Newflower Market, W.C. No. 4-824-963

Claimant sustained a compensable injury to his ankle in January 2009. The injury required orthopedic surgery and Claimant was later treated for an infection related to the surgery. After this treatment, Claimant showed no symptoms of the infection. On May 11, 2010, Claimant fell off a ladder and injured his ankle again. Two days later, Claimant was injured in a car accident while on his way to see the doctor for his ankle. Claimant suffered bruising from his seat belt. Claimant later checked into the emergency room, where an emergency surgery on his foot revealed significant infection. The infection had also spread to other parts of Claimant’s body.

Claimant asserted that he sustained two separate work-related injuries – on May 11 and on May 13 – and asserted that these injuries caused the reoccurrence of his infection. The court disagreed, finding that Claimant suffered only one injury – on May 11. In crediting one physician’s testimony, the court also found that Claimant’s infection was not caused by the injury, but instead had occurred independently, because Claimant was particularly susceptible to the infection.

Chavez and Pinnacol Assurance v. Kelley Trucking, Inc., 10CA1720

The Court held that claimants have no obligation to seek an insurer’s consent in order to settle with a third party for non-economic damages. The Court also held that claimants were not obligated to pursue all related causes of action jointly with their insurer.

Claimant sustained a work-related injury during a motor vehicle accident. Claimant and insurer, Pinnacol, jointly filed against the three tortfeasors who caused the accident. Claimant and Pinnacol settled with two of the defendants, and Claimant also settled Claimant’s workers’ compensation claim with Pinnacol. Claimant then independently settled with the third defendant, Kelley Trucking. The settlement stated that Claimant provided a release for all non-economic damages arising out of the accident. The settlement expressly stated that it did not “settle, release, reduce, compromise or affect” any causes of action subrogated to Pinnacol. Pinnacol proceeded to trial against Kelley, but was awarded no damages.

Pinnacol subsequently argued that Claimant must forfeit the settlement because Claimant did not seek written approval from Pinnacol pursuant to C.R.S. 8-41-203(2) before settling with Kelley. In the alternative, Pinnacol argued that the settlement should be allocated between Claimant and Pinnacol because Claimant was required to pursue all settlements jointly with Pinnacol.

The Court disagreed, holding that Pinnacol’s subrogation rights extended only to those damages for which Pinnacol was liable, namely “all compensation and all medical, hospital, dental, funeral, and other benefits and expenses to which the employee…[is] entitled under [the Act].” The Court noted that Pinnacol was not liable to Claimant for non-economic damages. Therefore, while Claimant could not settle with Kelley for expenses for which Pinnacol was liable, he could settle for those for which Pinnacol was not liable. The Court also noted that the settlement “explicitly and successfully preserved Pinnacol’s ability to prosecute the subrogated claims.” Therefore, the Court held that Claimant was not required to seek Pinnacol’s permission in order to pursue a settlement for non-economic damages. The Court also held that there is no provision or case that required Claimant and Pinnacol to obtain settlements jointly.

Loofbourrow v. Industrial Claim Appeals Office, W.C. No. 4-804-458; 10CA2176

The Court held that, when a claimant suffers a worsening of condition in a claim that remains open and for which no admission of liability has been filed, the claimant may still receive Temporary Total Disability (TTD) benefits after being placed at Maximum Medical Improvement (MMI). The Court also held that employers must specify an Authorized Treating Provider (ATP) for both the initial injury and also for the worsening of condition.

In November 2008, Claimant sustained a compensable back injury and was placed at MMI with no permanent medical impairment. Claimant received treatment, but lost no time at work. Because Respondents did not file any admission of liability, the case remained open. However, Claimant later sustained a worsening of condition which forced her to stop working. Claimant notified Respondents of the worsening, but Respondents failed to designate an ATP. Claimant began treating with her personal physician, to which Respondents objected.

The Court concluded that, although Respondents had designated an ATP for Claimant’s initial injury, they failed to direct Claimant back to her original ATP, so the right of selection had passed to Claimant.

Claimant alleged entitlement to TTD benefits. Ordinarily, a claimant is only eligible for TTD benefits up to the point that she is placed at MMI. An MMI determination is binding in the absence of a DIME. However, a claimant may only undergo a DIME after the employer or insurer files a Final Admission of Liability (FAL). Because Respondents never filed an FAL, Claimant never had the opportunity to contest the MMI determination. Without an FAL, the case remained open.

The Court first stated that the fact that a case remained open did not preclude a claimant from asserting a worsening of condition. The Court next asserted that, because Claimant could not challenge the MMI determination – and thus potentially be taken off MMI and eligible for TTD benefits – she was entitled to the TTD benefits she accrued because of her worsening of condition.

Risberg v. Industrial Claim Appeals Office, W.C. No. 3-941-887; 10CA2593

In an unpublished opinion, the Court held that an expert at hearing cannot base his testimony on assumptions that contradict facts established at prior hearing. The Court also held that the law at the time a claimant is initially determined to be permanently and totally disabled is the standard that governs whether a claimant’s condition has improved.

Claimant suffered a compensable brain injury in 1988. She was placed at MMI in 1992 and determined to be permanently and totally disabled. She began receiving Permanent Total Disability (PTD) benefits. In 2006, after Claimant’s credit and identity cards were stolen and Claimant began her own investigation of the matter, a local news station aired a segment profiling Claimant and her efforts. Prompted by the report and other surveillance, Respondents alleged Claimant had undergone a change in condition or had committed fraud, and sought to reopen the case and to terminate Claimant’s PTD benefits. An ALJ, relying on the testimony of three of Respondents’ expert witnesses, found that Claimant’s status had improved and that she was no longer permanently and totally disabled.

During the hearing, Respondents presented testimony from a neuropsychologist and psychiatrist, both of whom asserted that Claimant had never suffered a compensable brain injury. The Court stated that the testimony should not have been admitted, because, in stating that Claimant never sustained a compensable injury, the experts raised an original issue that had already been litigated in 1988. The Court concluded that the experts’ opinions did not have a reasonable basis and were legally unfounded because claimant’s injury had already been established in prior proceedings.

Respondents also presented the testimony of a vocational expert who both relied on the other two experts’ assertion that Claimant never suffered a compensable injury and also applied the current legal standard for permanent and total disability. The expert asserted Claimant did not meet the current standard that an employee be “unable to earn any wages in the same or other employment” to be considered permanently and totally disabled. However, the Court held that the applicable legal standard was the standard at the time that Claimant was initially determined to be permanently and totally disabled. The standard at that time only required that an employ be unable to regain efficiency in some substantial degree as a working unit in the fields of general employment. Because the expert applied an incorrect legal standard, the Court held that the expert’s testimony should not have been admitted.

The Court concluded that the ALJ should never have considered the experts’ testimony, because the Court found the testimony of all three experts legally unfounded. As a result, the Court overturned the ALJ’s ruling and denied Respondents’ request to reopen the case and terminate PTD benefits.

The following memo surveys the Industrial Claim Appeals Office (I.C.A.O.) and the Colorado Court of Appeals decisions issued in May of 2011. If you have any questions about the future implications of each one of these cases, please never hesitate to contact us.

Beth Robinson v. Goodbye Blue Monday, W.C. No. 4-613-287 (April 21, 2011)

The parties entered into a full and final settlement agreement, which included funding of a Medicare Set Aside (MSA). The settlement agreement provided that Respondents would fund the MSA upon CMS approval. Another provision stated that MSA funding was contingent upon CMS approval and Respondents agreed to pay for maintenance medical benefits during the approval process.

After the settlement agreement, the Social Security Administration awarded the Claimant retroactive Social Security Disability Income (SSDI) benefits. Respondents refused to submit the MSA for CMS approval. Respondents also refused to pay maintenance medical benefits pending approval of the MSA. Respondents argued that submission of the MSA to CMS was futile because the amount of the settlement was under $250,000 and CMS would not likely consider the MSA proposal.

The ALJ determined that Respondents’ conduct caused the Claimant “great harm and potential harm.” The ALJ assessed penalties in the amount of $300 per day from November 23, 2009 through July 29, 2010 for Respondents’ failure to pay maintenance medical benefits, which the ALJ construed as unilateral termination of medical benefits despite the amendments to W.C.R.P. Rule 7-2. The I.C.A.O. affirmed the ALJ’s assessment of monetary penalties against Respondents.

Deanna Siefken v. The Home Depot, W.C. No. 4-740-549 (April 27, 2011)

The I.C.A.O. issued two separate opinions on April 27, 2011 in favor of Respondents. One case concerned insurance coverage and penalties. The second case concerned permanent partial disability benefits and medical maintenance benefits.

In the first case, Claimant sought monetary penalties for the employer’s alleged failure to carry worker’s compensation insurance. Claimant argued the employer’s contractual obligation to reimburse the insurer was considered a “deductable.” The Colorado Workers’ Compensation Act prohibits deductibles from exceeding $5,000.  The ALJ determined that the contractual obligation was not a deductable because a deductable is defined as “the portion of the loss to be borne by the insured before the insurer becomes liable for payment.” Thus, Respondents did not violate the Act’s insurance coverage requirements. The I.C.A.O. affirmed.

In the second case, the insurer, but not Respondents’ attorney or the employer received a DIME report.  Respondents did not receive the DIME addendum report until several months later. Respondents subsequently filed an Application for Hearing to overcome the DIME on the issue of MMI and impairment. The DIME provided a 23% whole person impairment rating, which the ALJ overruled and provided no impairment.  The Claimant argued that Respondents failed to timely file an Application for Hearing challenging the DIME physician’s opinion on MMI and impairment. The ALJ determined Respondents’ receipt of the DIME addendum report triggered the statutory 30 day time limit to file an Application for Hearing to challenge the DIME physician’s opinion. The I.C.A.O. affirmed.

Ben Steele v. Oakland Raiders, W.C. No. 4-833-191 (April 27, 2011)

Claimant, who resided Colorado and played football in California, filed a claim for workers’ compensation benefits in California. Respondents filed the Employer’s First Report of Injury in Colorado. The Director assessed monetary penalties against Respondents failure to file a position within 20 days. Respondents submitted documents to the Director evidencing that Claimant sought benefits in California for alleged cumulative trauma. While the I.C.A.O. vacated the Director’s penalties order, the case was remanded to determine whether it was necessary for Respondents to admit or deny the claim given that the First Report of Injury was filed in Colorado.

Schell v. Tolin Mechanical Systems, W.C. No. 4-592-624 (May 11, 2011)

Respondents sought to introduce testimony of an employer witness at hearing. The ALJ barred the witness’s testimony on the grounds that Respondents failed to endorse the witness on their Response to Application for Hearing. A co-Respondent removed from the claim prior to hearing endorsed the witness on their Response to Application for Hearing. The I.C.A.O. affirmed the ALJ’s decision holding that only witnesses endorsed on the pleadings may testify not withstanding a later order or written agreement.

Medina-Weber v. Denver Public Schools, W.C. No. 4-782-625 (May 9, 2011)

During a previous claim, Respondents overcame a DIME that assessed a 13% whole person impairment rating. The DIME also apportioned 10% of the 13% whole person impairment rating to previous injuries. At hearing, the ALJ assessed no permanent impairment. During a later case, the Claimant underwent a DIME, which determined physical impairment with no apportionment. The later ALJ determined that no apportionment was applicable because the previous ALJ provided no ratable impairment.

On appeal, the I.C.A.O. stated that the DIME report must be overcome by clear and convincing evidence. Although the first ALJ determined permanent impairment, the Claimant did not overcome the first DIME physician’s apportionment determination by clear and convincing evidence. Thus, the I.C.A.O. held that apportionment was applicable and remanded the case for an apportionment determination.

Munoz v. Industrial Claim Appeals Office, No. 10CA0592 (May 12, 2011)

This case involved whether DIME proceedings are stayed during the pendency of a dispute over the DIME selection process. The Court of Appeals held that when an Application for Hearing challenging the DIME selection process is filed with the Office of Administrative Courts and the party serves the Division DIME Unit, the stay of DIME proceedings is automatic. The Court of Appeals dismissed the remaining penalties issue.

Kondracki v. Metro Taxi, W.C. No. 4-782-175, ICAO

This claim addresses the “similar” insurance coverage requirements of C.R.S. § 40-11.5102(5)(b). Claimant was injured while operating a taxi cab.  Metro asserted that Claimant was an independent contractor.  The ALJ held that Claimant was an employee of Metro Taxi based on the terms of the agreement between Claimant and Metro.  Additionally, Metro was uninsured at the time, and notified of such due to another pending claim.  The ALJ assessed penalties against Metro for violation of C.R.S. § 40-11.5102(5)(b) as Claimant’s insurance policy with AIG was “not similar” to workers’ compensative coverage. The panel affirmed. What this means for you: An employer cannot evade the required workers’ compensation coverage by contracting out work to independent contractors with substandard coverage plans. Ensure all independent contractors or contract employees have sufficient coverage similar to workers’ compensation coverage.

Lane v. Hospital Shared Services, W.C. No. 4-784-015, ICAO

This claim addresses the causation requirement between inability to earn wages and eligibility for permanent total disability (PTD) benefits. Claimant injured his left arm and hand tripping over a pallet jack.  In addition to his workers’ compensation injury, Claimant suffered from numerous, debilitating non-work related conditions. With all of his injuries and illnesses, Claimant was unable to work and asserted a claim for PTD benefits.  The ALJ determined Claimant’s inability to earn wages was due to his non-work related conditions and complications, and he was therefore not eligible for PTD benefits. The panel affirmed.  What this means for you: Claimant bears the burden to prove that the industrial injury is a “significant causative factor” in Claimant’s inability to earn wages and subsequent entitlement to PTD benefits.

Trusty v. Big Lots Stores, Inc., W.C. No. 4-770-446, ICAO

This claim addresses the requirement to assert the affirmative defense of issue preclusion (a.k.a. collateral estoppel). Claimant suffered a low back injury which was found compensable by ALJ Felter. Claimant underwent a Division IME (DIME) and was provided a 20% whole person impairment rating. Respondents challenged the DIME, and ALJ Jones found Respondents overcame the DIME by clear and convincing evidence. Claimant appealed on the basis that compensability was determined by ALJ Felter, and thus precluded from consideration by ALJ Jones. The panel referenced Sunny Acres Villa, Inc. and held that the issue sought to be precluded must be identical to an issue actually determined in prior proceedings. Because Claimant did not raise the issue of impairment or the issue of the nature and extent of his permanent impairment before ALJ Felter, ALJ Jones properly considered the issue at hearing and did not commit error in determining Respondents met their burden to overcome the DIME by clear and convincing evidence. What this means for you: Collateral estoppel will rarely be an available affirmative defense, as issues raised in subsequent hearings are rarely similar, let alone identical, to issues raised in initial compensability proceedings.

Pankratz v. Hancock Fabrics, W.C. No. 4-653-869, ICAO

This claim addresses the rights of the parties to alter a settlement agreement in the event the Medicare Set Aside (MSA) approved amount far exceeds the estimated amount. The parties entered into an approved settlement agreement with Respondents’ agreement to fund an MSA which was estimated to be approximately $30,000. The final approved MSA amount was over $488,000. Respondents filed an Application for Hearing and requested the MSA portion of the settlement be set aside to due mutual mistake of material fact. Claimant then alleged penalties against Respondents for failure to comply with the Order approving the settlement. The ALJ found Respondents failed to prove mutual mistake and denied Claimant’s claim for penalties Claimant appealed the ALJ’s failure to impose penalties, and asserted the ALJ erred in determining he had no jurisdiction over the MSA. The panel held that W.C.R.P. Rule 7-2(A)(1) clearly stated that approval of a settlement agreement does not constitute approval of an MSA, and therefore Respondents were not in violation of the Order, or subject to penalties, by failing to adequately fund the MSA. What this means for you: The panel intimated the MSA might well be a binding agreement, a breach of which could lead to a cause of action. However, the panel did not reach any further conclusions as that issue was not before the panel. Structure settlement language carefully to allow for setting aside the settlement agreement in the case of a “surprise” MSA amount.

Smith v. J-T Initiatives, Inc., W.C. No. 4-815-801, ICAO

This claim affirms established law that a Claimant is entitled to an increase in average weekly wage based on concurrent employment, which will correspondingly increase Claimant’s temporary total disability benefit rate.

Olaes v. Elkhorn Construction Company, W.C. No. 4-782-977, ICAO

This claim affirms established law that a Claimant who is responsible for termination of their employment cannot allege entitlement to lost wages through temporary total disability benefits.  In this claim, Claimant falsified his social security and permanent resident card.

Steele v. Denver Public Schools, W.C. Nos. 4-826-116 & 4-833-702, ICAO

This claim affirms established law that a Claimant must prove compensability by a preponderance of the evidence, and an ALJ’s determination regarding compensability will not be disturbed on appeal unless the findings of fact are not supported by the evidence.

Johnson v. Champ, LLC, W.C. No. 4-785-983, ICAO

This claim concerns the required supporting documentation for proper filing of a Final Admission of Liability (FAL). At hearing, the ALJ concluded the physician’s report attached to the FAL had been altered, most likely by outside influence, in regards to permanent impairment and MMI. Respondents had admitted for a wrist injury, which was at MMI, but not Claimant’s neck, elbow, and shoulder conditions. As such, the ALJ held the FAL to be void, and assessed penalties against Respondents in the amount of $49,050 for violation of W.C.R.P. 5-5.  Respondents appealed, citing violation of due process, and improper burden shifting on causation. The panel held Respondents were not provided sufficient notice regarding the allegedly altered FAL, thus the ALJ abused his discretion by not providing the insurer with a fair opportunity to respond to the allegation. Regarding causation, the panel found the ALJ had not made sufficient findings of fact to conclude that Respondents knew the disputed conditions were related to the admitted condition upon the filing of the FAL, and therefore could not assess penalties.  The panel remanded the claim back to the ALJ for further findings.  What this means for you: Whenever a Claimant asserts a claim for penalties, request that the ALJ make in-depth, specific findings of fact for the basis of penalties so that your counsel can properly consider appeal without remand.

The following is an overview of a number of important House Bills and statutory changes made in the Legislature that have a direct impact on the parties in adjudication of Colorado workers’ compensation claims. [Read more...]

Benchmark/Elite, Inc. v. Simpson; City of Colorado Springs v. Bennett
Nos. 09SC586 & 09SC769.

Tried by Mr. Thomas Kanan, Lee and Kinder, LLC recently litigated an appeal in the Colorado Supreme Court concerning whether an average weekly wage can be recalculated beyond the statutory limit on maximum benefits, and won a determination that the maximum cap remains applicable for all cases after their original “date of injury.” [Read more...]

SB 10-163 was signed by Governor on March 31, 2010. It includes some important statutory changes. [Read more...]

Barnett v. Wal-Mart Stores, Inc. and American Home Assurance
W.C. No. 4-769-486, ICAO

This case defines what constitutes an offer of modified employment. Respondents sought to terminate temporary total disability (“TTD”) benefits by making an offer of modified  employment. [Read more...]