Opinion
W.C. No. 4-753-124.
March 4, 2009.
ORDER
The claimant seeks review of an order of Administrative Law Judge Cannici (ALJ) dated September 24, 2008, that determined that the claimant sustained a compensable shoulder strain and that denied temporary total disability benefits on the ground that the claimant was responsible for her termination from employment. We affirm the ALJ's order denying temporary total disability benefits. We dismiss the claimant's petition to review insofar as it seeks review of the ALJ's findings of fact concerning the extent of the injury.
A hearing was held on the issues of whether the claimant sustained a compensable injury and, if so, whether she was entitled to temporary total disability benefits. The respondents defended the claim of temporary total disability benefits on the ground that the claimant was responsible for her termination from employment. Following the hearing the ALJ entered findings of fact that for the purposes of this order may be summarized as follows. The claimant worked for the employer as a housekeeper, whose duties included picking up the trash, mopping the floors, and making the beds. On January 20, 2008, the claimant was working in the employer's emergency room preparing an adjustable bed. When she pushed a part of the bed she felt a "pop" in her right shoulder and experienced pain. She saw Dr. Woo for treatment, and he diagnosed her as having a right shoulder strain and imposed work restrictions. On January 24, 2008 the employer offered the claimant modified work, which Dr. Woo approved and the claimant accepted. She performed the modified duty from January 24th to January 28th and on January 30th the claimant's personal medical provider, Paul Flippen, P.A., stated in a note that the claimant was suffering from a sinus and bronchial infection. He also stated that she was unable to work for a week and could return to work on February 4, 2008. On January 28, 2008 the claimant began a leave pursuant to the Family and Medical Leave Act (FMLA). The claimant failed to return to work on February 4th. She contacted the employer the following week and stated that her shoulder hurt and her medications were causing side effects that included grogginess. On February 7th the claimant informed the employer that her physician would release her to work effective February 12th. She returned to work on that day and submitted to the employer Flippen's note releasing her to work on February 4th; however, she did not provide any further documents excusing her from work until February 12th. The employer concluded that her absences from February 4th to February 12th were unexcused and that she had falsified the reasons for that absence. The claimant was terminated from her employment on February 20th for giving the employer false information about her absence. The written form given to the claimant regarding the reasons for her discharge also included information concerning a number of written warnings she had received regarding previous attendance problems. The ALJ also entered extensive factual findings concerning the medical treatment undergone by the claimant and the various diagnoses made by her providers.
Based upon his factual findings, the ALJ concluded that the claimant was responsible for the termination from her employment. He therefore denied temporary total disability benefits based upon the termination statutes precluding temporary disability benefits where an injured worker is responsible for the termination of employment. See 38-42-103(1)(g), C.R.S. 2008; 38-42-105(4), C.R.S. 2008. (Commonly referred to as the "termination statutes.") He also found that the claimant had suffered only a right shoulder strain and had reached maximum medical improvement on May 20, 2008.
The claimant appealed and makes two arguments. First, she argues that the ALJ's findings regarding her termination from employment are not supported by substantial evidence in the record and that the order denying temporary total disability benefits is not supported by applicable law. Second, she argues that the ALJ did not have subject matter jurisdiction to determine that she sustained only a shoulder strain rather than a more serious injury.
I.
The claimant first argues that the ALJ erred in denying temporary total disability benefits. Specifically, the claimant argues that the ALJ applied an erroneous legal standard in applying the termination statutes. In this regard, the claimant contends that she did not commit any volitional act leading to her discharge. To the contrary, she argues that she was ill on the days in question, and that her absences were therefore caused by circumstances over which she had no control. However, we are not persuaded that the ALJ erred in his interpretation of the applicable law.
As previously noted, the ALJ concluded that the claimant was barred from receiving temporary total disability benefits because she was responsible for her termination from employment. Sections 8-42-105(4) and 8-42-103(1)(g) contain identical language stating 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 held that the term "responsible" reintroduced into the Workers' Compensation Act the concept of "fault" applicable prior to the decision in PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995). Hence the concept of "fault" as it is used in the unemployment insurance context is instructive for purposes of the termination statutes. In that context "fault" requires that the claimant must have performed some volitional act or exercised a degree of control over the circumstances resulting in the termination. Padilla v. Digital Equipment Corp., 902 P.2d 414 (Colo.App. 1995) opinion after remand 908 P.2d 1185 (Colo.App. 1985). That determination must be based upon an examination of the totality of circumstances. Id.
The question whether the claimant acted volitionally or exercised a degree of control over the circumstances of the termination is ordinarily one of fact for the ALJ. Knepfler v. Kenton Manor, W.C. No. 4-557-781 (March 17, 2004). Accordingly, as with the previous factual determinations in this case, we must uphold the ALJ's findings in this regard if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2008; City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). Again, this standard of review is narrow and requires us to view the evidence in the light most favorable to the prevailing party. 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).
We perceive no error in the ALJ's order denying temporary total disability benefits. In our view, the ALJ's dispositive factual finding is that the claimant was discharged because she failed to correctly and accurately inform the employer of the reasons for her absences after February 4th. This "unauthorized" absence, in combination with the claimant's history of attendance problems and resultant warnings, caused her job separation. In this regard the ALJ found that the claimant had a written medical report from the physician's assistant who treated her, releasing her from work until February 4th. She contacted the employer after February 4th and stated that her doctor would provide a written release from work for that week. However, when she returned to work on February 12th the employer questioned her about her failure to provide documentation excusing her from work from February 4th to February 12th. She replied that she had asked the physician's assistant to change the date on his release from work, extending it to February 12th, but that he had refused to do so. The employer then terminated her for the unauthorized absences and because she had falsified the reasons for those absences. These dispositive factual findings are amply supported by the testimony of the employer's witnesses. Tr. at 77-79, 84, 86.
In our view, these findings support the conclusion that the claimant was "at fault" for the job separation and therefore responsible within the meaning of the termination statutes. Although the claimant argues that she was actually ill and unable to work from February 4th to February 12th, it was her failure to obtain authorization and her failure to comply with the employer's procedures that caused her discharge. See Eckart v. Industrial Claim Appeals Office, 775 P.2d 97 (Colo.App. 1989) (It is the direct and proximate cause of a separation from employment that establishes entitlement to unemployment benefits based on wages earned in that employment.) Because she had control over the circumstances of obtaining authorization for her absences, the ALJ did not err in concluding that she was responsible for her termination.
II.
The claimant also argues that the ALJ erred in finding that she sustained a shoulder strain as opposed to a more serious injury. We conclude that this portion of the ALJ's order is not presently final and reviewable. Accordingly, we dismiss the petition to review the ALJ's findings of fact concerning the extent of the injury.
The ALJ's disputed finding is that the claimant sustained only a "right shoulder strain" in the compensable accident. We note that this determination is not integral to the resolution of the any issues regarding benefits, compensation, or penalties before the ALJ. Rather, presumably the claimant advances her argument concerning the possible legal effect of the finding in some future litigation. Because the effect of the finding in future litigation is both hypothetical and speculative, we have no authority to address the argument. There has been no award or denial of benefits in the hypothetical litigation, and any order which we might issue on the question whether the ALJ exceeded his authority in ruling on the extent of the injury would be merely advisory. See Board of Directors v. National Union Fire Insurance Company, 105 P.3d 653 (Colo. 2005) (courts should refuse to consider uncertain or contingent future matters that suppose speculative injury that may never occur).
Section 8-43-301(2), C.R.S. 2008 provides that any dissatisfied party may file a petition to review "an order which requires any party to pay a penalty or benefits or denies a claimant any benefit or penalty." An order which does not satisfy one of the finality criteria of this statute is interlocutory and not subject to immediate review. Natkin Co. v. Eubanks, 775 P.2d 88 (Colo.App. 1989). Under this statute, the order must be one that finally disposes of the issues presented. Bestway Concrete v. Industrial Claim Appeals Office, 984 P.2d 680 (Colo.App. 1999). An order may be partially final and reviewable and partially interlocutory. Oxford Chemicals, Inc. v. Richardson, 782 P.2d 843 (Colo.App. 1989). Under these principles our jurisdiction is purely statutory and may not be conferred by waiver, consent, or any other equitable principle. Gardner v. Friend, 849 P.2d 817 (Colo.App. 1992). The absence of a final, reviewable order is fatal to our jurisdiction. Buschmann v. Gallegos Masonry, Inc., 805 P.2d 1193 (Colo.App. 1991). Moreover, we have previously noted that we cannot review an interlocutory order solely on the basis that "there is no other adequate remedy." See Jones v. Chicken-N-Pasta, W.C. No. 4-197-841 (February 3, 1995).
The finding complained of by the respondents is not a dispositive one in the award or denial of any benefits, compensation or penalties. Indeed, we note that at the commencement of the hearing the claimant's attorney stated that an issue for resolution was "compensability" with no discussion of any disputed medical benefits. Tr. at 8. It is certainly true that in the future there may be a dispute regarding the extent of the claimant's injury and, in connection with that dispute, the respondents may attempt to interpose this order to preclude certain medical treatment or some other form of benefits or compensation. The allegation of error complained of here may well be final and reviewable in connection with a final order entered in the future resolving such a dispute over medical benefits. However, at this particular hearing the claimant sought only a ruling that she sustained a compensable injury. Whether the ALJ exceeded his authority in connection with resolving that dispute is not presently a reviewable question. At present the claimant merely seeks an advisory ruling on the effect of this finding in the event of a dispute on benefits in the future. We conclude that this aspect of the order is currently not subject to review. See Taylor v. Kemper Insurance W. C. No. 4-467-440 (November 25, 2005). Therefore the claimant's petition to review this portion of the order is dismissed without prejudice.
IT IS THEREFORE ORDERED that the claimant's petition to review the ALJ's order dated September 24, 2008, is dismissed without prejudice insofar as it seeks review of the ALJ's findings of fact concerning the extent of the injury.
IT IS THEREFORE FURTHER ORDERED that the ALJ's order dated September 24, 2008, is otherwise affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________
John D. Baird
______________________________
Curt Kriksciun
CATHERINE SCOTT, BROOMFIELD, CO, (Claimant).
EXEMPLA HEATHCARE, INC., Attn: MICHELLE M HORNING, WHEAT RIDGE, CO, (Employer).
THE FRICKEY LAW FIRM, Attn: ADAM M MCCLURE, ESQ., LAKEWOOD, CO, (For Claimant).
LEE KINDER, LLC, Attn: KATHERINE MARKHEIM LEE, ESQ., DENVER, CO, (For Respondents).
SEDGWICK CLAIMS MANAGEMENT SERVICES, INC., Attn: JASON HOUSTON, LEXINGTON, KY, (Other Party).