Opinion
W.C. No. 4-584-358.
August 10, 2004.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) which denied temporary disability benefits commencing June 30, 2001. We affirm.
Prior to June 1, 2001, the claimant was a janitorial employee of the respondent-employer. However, commencing June 1, 2001, the respondent-employer decided to bid out the janitorial work. The claimant won the bid. However the contract was placed in the name of the claimant's husband because the claimant had begun receiving Social Security Disability benefits. After June 1, 2001, the claimant assisted her husband with the work and served as the contact for the respondent-employer.
In June 2003, the claimant was notified that the contract would not be renewed due to complaints about poor quality work being performed. The claimant then filed a claim for workers' compensation benefits. On August 5, 2003, the claimant was medically restricted from lifting more than 5 pounds, performing overhead work or doing any pushing or pulling with her arms.
The ALJ found the claimant sustained a compensable occupational disease affecting her upper extremities but was not disabled until August 5, 2003. Therefore, the ALJ determined the claimant was not entitled to temporary disability benefits prior to August 2003. Further, the ALJ found that the termination of the claimant's employment contract in June 2003 was not caused by the occupational disease. Instead, the ALJ determined the termination was caused by the claimant's poor work quality, "a factor over which she had some degree of control." (Finding of Fact 17; Conclusion of Law 10). Therefore, the ALJ determined the claimant was responsible for the termination of employment and barred by § 8-42-103 (1) (g), C.R.S. 2003 from receiving temporary disability benefits after July 2003.
On review the claimant does not dispute that her employment was terminated due to poor quality work. However, the claimant contends that the poor work quality was because of physical problems associated with her advanced age. Under these circumstances, the claimant contends the ALJ erred in finding the termination was precipitated by the claimant's volitional conduct. We perceive no basis to disturb the ALJ's order.
To prove entitlement to temporary total disability benefits the claimant must prove the industrial injury caused a "disability." PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995). The term "disability" refers to the claimant's physical inability to perform regular employment. McKinley v. Bronco Billy's, 903 P.2d 1239 (Colo.App. 1995). Where the claimant fails to prove a "disability" no temporary disability benefits are due regardless of the amount of the claimant's wage loss. This is true because § 8-42-103 (1) (a), C.R.S. 2003, requires a claimant to establish a causal connection between a work-related injury and a subsequent wage loss in order to obtain temporary disability benefits. PDM Molding Inc. v. Stanberg, supra.
Here, the claimant sought temporary disability benefits commencing June 1, 2001. However, the record supports the ALJ's determination that the industrial injury was not disabling until August 5, 2003, when Dr. Sacksen imposed medical restrictions.
Further, § 8-42-103 (1) (g) and identical language in § 8-42-105 (4) (termination statutes), provides that "where it is determined that a temporarily disabled employee is responsible for termination of employment, the resulting wage loss shall not be attributable to the on-the-job injury." In Colorado Springs Disposal v. Industrial Claim Appeals Office, 58 P.3d 1061 (Colo.App. 2002), the Court of Appeals held that the term "responsible" introduces into the Workers' Compensation Act the limited concept of "fault" used in termination cases before the Supreme Court's decision in PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995). A claimant is "responsible" if the claimant precipitated the employment termination by a volitional act. In Padilla v. Digital Equipment Corp. 902 P.2d 414, 416 (Colo.App. 1994), the court stated that "at a minimum, to be deemed at fault or responsible for his discharge, claimant must have performed some volitional act or otherwise exercised a degree of control over the circumstances resulting in the termination."
However, in Gregg v. Lawrence Construction Co., W.C. No. 4-475-888 (April 22, 2002), aff'd Lawrence Construction Co., v. Industrial Claim Appeals Office (Colo.App. No. 02CA0926, January 30, 2001) (not selected for publication), we held that the claimant was not "responsible" for the termination, and the termination statutes did not preclude an award of temporary disability benefits where the claimant is physically unable to perform the employment. See also, Bestway Concrete v. Industrial Claim Appeals Office, 984 P.2d 680 (Colo.App. 1999); Pepsi-Cola Bottling Co. v. Division of Employment and Training, 754 P.2d 1382 (Colo.App. 1988); Windom v. Lawrence Construction Co., W.C. No. 4-487-966 (November 1, 2002). This is true because the very purpose of temporary disability benefits is to compensate for a temporary loss of wages which occurs when the claimant is physically unable to perform the pre-injury employment. Schlage Lock v. Lahr, 870 P.2d 615 (Colo.App. 1993). We adhere to our prior conclusions.
The question of whether the claimant acted volitionally is generally a question of fact for determination by the ALJ. Consequently, we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301 (8), C.R.S. 2003. Under this standard, we must review the evidence in the light most favorable to the prevailing party, and accept the ALJ's resolution of conflicts in the evidence, as well as the plausible inferences which he drew from the evidence. Industrial Commission v. Royal Indemnity Co., 124 Colo. 210, 236 P.2d 293 (1951); Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). This standard also affords the ALJ broad discretion in assessing the weight and sufficiency of the evidence, and we may not disturb the ALJ's credibility determinations unless there is hard, certain evidence directly contrary to the testimony which the ALJ found credible. See Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986); Johnson v. Industrial Claim Appeals Office, 973 P.2d 624 (Colo.App. 1997). Consequently, the ALJ's credibility determinations are binding except in extreme circumstances. Arenas v. Industrial Claim Appeals Office, 8 P.3d 558 (Colo.App. 2000). We perceive no extreme circumstances here.
The claimant testified she was not longer capable of providing quality cleaning services after June 2001 due to problems with her hands, and impaired vision. The employer's witness stated that the claimant's age probably prevented her from being able to meet the employer's expectations. (Tr. p. 60). The ALJ implicitly rejected the testimony that the claimant was physically unable to meet the employer's expectations, and instead determined that the claimant exercised some control over the quality of work performed by she and her husband See Levy v. Everson Plumbing Co., Inc., 171 Colo. 468, 468 P.2d 34 (1970) (ALJ not required to credit claimant's testimony even if uncontroverted); Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968) (ALJ may credit all, part, or none of a witness' testimony). The ALJ's credibility determination is supported by testimony from the employer's witness that whenever a deficiency was noted the claimant promised to take care of it and did not complain that she was physically unable to make the correction. (Tr. p. 51). The ALJ's determination is also buttressed by evidence the claimant accepted a renewal of the contract in 2002 and did not attempt to terminate the contract in 2003 or give notice that she was not interested in renewing the contract for another year. Further, the ALJ's determination supports the conclusion the claimant was responsible for the termination of employment.
In Longmont Toyota Inc., v. Industrial Claim Appeals Office, 85 P.3d 548 (Colo.App. 2003), cert. granted, March 8, 2004 (03SC450), the court held that the termination statutes were enacted to "resurrect" former law and overrule PDM. The former law, according to Longmont Toyota, was that "when a claimant's voluntary conduct caused his or her termination and the injury played no part in the discharge, a compensable injury was no longer recognized for purposes of temporary disability benefits." Ibid at 550. Thus, in Longmont Toyota the court concluded that the termination statutes create a "permanent" and "complete" bar to the receipt of temporary disability benefits for "any wage loss" following a termination for which the claimant is responsible. Ibid at 551. The only exceptions mentioned by the court occur when the claimant's disability is the result of a "work-related aggravation of the old injury or a new injury." Ibid at 551.
The claimant contends Longmont Toyota was wrongly decided and seeks to preserve that issue for further review. However, we are bound by published decisions of the Court of Appeals unless and until modified or reversed by the Supreme Court. C.A.R. 35(f). Finally, the facts presented here do not fall into one of the exceptions discussed by the court in Longmont Toyota. Therefore, the ALJ's order is consistent with Longmont Toyota and must be upheld.
IT IS THEREFORE ORDERED that the ALJ's order dated December 3, 2003, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
Lena Belmonte, Salida, CO, Kathy Sharpe, Salida, CO, Legal Department, Pinnacol Assurance — Interagency Mail, William A. Alexander, Jr., Esq., Colorado Springs, CO, (For Claimant).
Douglas P. Ruegsegger, Esq. and Michele Stark Carey, Esq., Denver, CO, (For Respondents).