FINAL ORDER

The claimant and respondents both seek review of an order of Administrative Law Judge Stuber (ALJ) dated November 27, 2007, that awarded the claimant temporary partial disability (TPD) benefits but denied the claimant's claim for temporary total disability (TTD) benefits. We affirm.

The ALJ's pertinent findings of fact are as follows. The claimant suffered an admitted injury to her right knee on July 22, 2006. The parties stipulated that the claimant was unable to return to her usual occupation due to the work injury. The claimant was offered modified duty and subsequently returned to work on December 6, 2006. In January 2007 the employer terminated the claimant's employment due to "no call" and "no show" violations. The ALJ found that the claimant was not responsible for her termination from this modified employment with the respondent employer. The claimant then went to work for Global Call Centers as a telemarketer for an average weekly wage substantially lower than what she had earned before her injury at the employer. The claimant was able to perform this work within her work restrictions. Around March 1, 2007 the claimant failed to call in or appear for work at Global Call Centers and the claimant's employment was terminated. The ALJ found that the claimant was responsible for her termination from the subsequent employer Global Call Centers.

The ALJ applied the "termination statutes" §§ 8-42-103(1)(g), C.R.S. 2007 and 8-42-105(4), C.R.S. 2007 and discontinued the claimant's right to TTD as of March 1, 2007, the day the claimant terminated from Global Call Centers. However, the ALJ found that the claimant continued to experience a temporary partial wage loss as a result of the work injury even after March 1, 2007. Therefore, the ALJ concluded that the claimant's responsibility for termination from the subsequent employment did not preclude TPD benefits even after March 1, 2007.

I.

On appeal the claimant first contends that that the ALJ erred in ending her right to TTD by applying §§ 8-42-103(1)(g) and 8-42-105(4) (the "termination statutes") to the claimant's termination from her subsequent employment. The claimant argues that the termination statutes do not apply beyond the original employer where the injury occurred.

Sections 8-42-105(4), and 8-42-103(1)(g), contain identical language stating that in cases "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." As noted by the ALJ, contrary to the claimant's argument the termination statutes have been applied to instances in which the claimant was responsible for the termination of employment subsequent to that with the respondent employer. Scruggs v. United Parcel Service, W. C. No. 4-490-474 (June 18, 2004). In Scruggs a panel of the Industrial Claim Appeals Office relied upon Colorado Springs Disposal v. Industrial Claim Appeals Office 58 P.3d 1061 (Colo.App. 2002) and ruled that the termination statutes applied to subsequent employers as well as to the employer at the time of injury. The panel in Scruggs noted that the court in Colorado Springs Disposal applied the ordinary, "all-inclusive" meaning of the term "employment" in the termination statutes. The court reasoned that the termination statutes were enacted to apply to a wide range of circumstances and thus the broader construction of the term "employment" was appropriate. We are not persuaded by the claimant's arguments to depart from the ruling in Scruggs. Therefore, we reject the claimant's assertion that in the context of the termination statutes the term employment is confined to employment with the pre-injury employer.

II.

The claimant next contends that the ALJ erred in finding that the claimant was at fault for her loss of subsequent employment. The claimant argues that the reason she quit her subsequent employment was related to her injury and, therefore, she is entitled to TTD even if the termination statutes apply. The claimant notes in this regard that she left her employment with Global Call Centers to obtain treatment for her injury. We find no reversible error in the ALJ's determination.

The ALJ applied the correct legal standard for determining whether the claimant was "responsible" for the termination. Hence, he noted that the relevant question is whether the claimant performed a volitional act or, considering the totality of the circumstances, exercised some degree of control over the circumstances leading to the termination. See Longmont Toyota, Inc. v. Industrial Claim Appeals Office, 85 P.3d 548 (Colo.App. 2003); Padilla v. Digital Equipment Corp., 902 P.2d 414 (Colo.App. 1994); vacated, 908 P.2d 1185 (Colo.App. 1995); Ellis v. All American Home of Colorado, Inc., W.C. No. 4-544-396 (June 26, 2003), aff'd., Ellis v. Industrial Claim Appeals Office, (Colo.App. No. 03CA1356, April 1, 2004) (not selected for publication). 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 ALJ did not err in his application of this legal standard.

The question of whether the respondents proved the claimant was responsible for the termination is usually one of fact for determination by the ALJ. Ellis v. All American Home of Colorado, Inc., supra. Thus, we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2007. This standard of review requires us to view the evidence in a light most favorable to the prevailing party, and defer to the ALJ's resolution of conflicts in the evidence, credibility determinations and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003).

Here, the ALJ found with record support that the claimant engaged in a volitional act that an employee would reasonably expect to result in the loss of employment. The ALJ generally credited the testimony of the owner of Global Call Centers. See Tr. at 12. The ALJ found that the work at Global Call Centers was within her restrictions. Tr. at 12-14, 16-17. The owner testified that Global Call Centers accommodated the claimant's need to attend physical therapy appointments in the afternoon. Tr. at 14 21-22. Even if the claimant was unable to switch her morning physical therapy session to another time, she did not inform Global Call Centers of her difficulty with her schedule and permit the employer to accommodate her need to attend medical appointments. Tr. at 20. Instead, the claimant simply stopped appearing for work, and also failed to notify the employer that she would not be at work. Tr. at 15. The subsequent employer therefore reasonably considered the claimant to have voluntarily terminated the employment. Tr. at 17. The testimony that the ALJ found credible therefore supports the finding that the claimant terminated her employment with Global Call Centers. Because we may not interfere with the ALJ's credibility determinations, the order must be upheld.

The claimant's reliance on Hennerman v. Western Fuels Utah, Inc., W. C. No. 4-344-596 (October 30, 2001) is misplaced. In our opinion, Hennerman is distinguishable from the present case. In Hennerman the claimant was required to undergo surgery and had not been released to return to work by the treating physician at a time when the claimant attended school. The panel noted that the claimant was not obliged to search for employment while disabled and that school attendance was not an intervening event that severed the claimant's right to temporary disability benefits. The panel also determined that the post-separation wage loss was caused by the industrial injury because the claimant had not been released to return to work. Here, the claimant had been released to return to modified work and was found by the ALJ to have been responsible for her termination from employment by her subsequent employer. Supplemental Order at 4, ¶ 19. We therefore perceive no basis on which to interfere with the ALJ's determination the claimant was at fault for her loss of subsequent employment.

III.

On appeal, the respondents contend that the ALJ erred in concluding that the claimant's responsibility for termination from the Global Call Centers does not preclude subsequent TPD benefits. The respondents, citing Anderson v. Longmont Toyota, 102 P.3d 323 (Colo. 2004), argue that except in the limited circumstances of a worsened condition, the termination statutes continue to bar any wage loss which follows a termination for which the claimant is responsible. The respondents argue that because the wage loss is not associated with the industrial injury, the termination statutes bar the claimant's receipt of all temporary disability benefits. We are not persuaded that the ALJ erred.

We have previously ruled that a partial wage loss can be attributable to the compensable injury even though the claimant was responsible for the termination of subsequent employment. See e.g., Patchek v. Colorado Department of Public Safety, W.C. No. 4-432-301 (September 27, 2001). In Patchek the panel reasoned that the loss of wages represented by the difference between the claimant's pre-injury AWW and the wages he would have earned in the modified employment did not "result" from the claimant's termination. Rather, the panel concluded that the disputed portion of the wage loss would have "resulted" regardless of the termination and remained attributable to the industrial injury. Thus, even though the claimant was responsible for the termination of subsequent employment, he still could be entitled to temporary partial disability benefits to compensate that portion of his wage loss that continued to result from the injury.

Similarly, in Minter v. Diesel Services of Northern Colorado, W. C. No. 4-513-118 (September 10, 2002) the panel held that if a claimant is responsible for termination of employment, but the terminated employment was modified employment at a reduced wage, the "resulting wage loss" is measured by the AWW at the time of the termination. Thus, to the extent the claimant's AWW at the time of the termination is less than the AWW at the time of the injury, the difference remains attributable to the disability caused by the injury and does not "result" from the claimant's action in causing the termination. Consequently, in such circumstances, the panel citing Patchek v. Colorado Department of Safety, W.C. supra., concluded that the claimant was entitled to TPD under § 8-42-106, C.R.S. 2002. In Minter the panel also noted that it had in a series of cases, held the plain and ordinary meaning of the term "resulting" is the "consequence or outcome of an action." Eg. Lovato v. Cathedral of Sacred Heart, W.C. No. 4-463-726 (May 13, 2002) (wage loss was not the result of voluntary termination where claimant's condition subsequently worsened and he became totally unable to work).

Contrary to the respondents' argument, in our view this result is consistent with the supreme court's opinion in Anderson v. Longmont Toyota. In that case the court held that the termination statutes did not create an "absolute bar" to the receipt of TTD following the claimant's termination from employment for cause. Rather, in the case of a worsened condition the claimant might be entitled to additional TTD despite the earlier termination. In our view, this holding is consistent with the principle that a partial wage loss can be attributable to the compensable injury following the loss of subsequent employment, even where the loss of employment is the responsibility of the claimant.

We recognize that authority exists that might be construed to support a contrary result. For example, in Homman v. Richard Alan Singer, 4-523-831 (March 12, 2003) a panel of the Industrial Claim Appeals Office ruled that the claimant's termination from the employment at the respondent employer was a permanent bar to the receipt of TTD, and that "any wage loss" subsequent to the termination was attributable to it. Hence the panel ruled that temporary partial disability benefits could not be recovered by a claimant terminated from subsequent employment paying less than the wages earned at the respondent employer. However, we note that Homman relied upon the court of appeals' opinion in Longmont Toyota v. Industrial Claim Appeals Office, 85 P.3d 548 (Colo.App. 2003), in which the court ruled that a termination from employment established a permanent bar to the receipt of TTD under all circumstances. As noted, the court of appeals' opinion in Longmont Toyota was subsequently reversed by the supreme court in Anderson and we conclude that the reasoning of Homman is therefore no longer consistent with the applicable law. Consequently, we find no error in the ALJ's determination to award the claimant TPD after the claimant's termination from her employment with Global Call Centers. IT IS THEREFORE ORDERED that the ALJ's order issued November 27, 2007 is affirmed.

INDUSTRIAL CLAIM APPEALS PANEL

____________________________________ Curt Kriksciun

____________________________________ Thomas Schrant

MICHELLE GARBISO, PUEBLO, CO, (Claimant)

CLAIMS MANAGEMENT INC., Attn: LEA ANN GAVELLAS, BENTONVILLE, AR, (Insurer)

KONCILJA KONCILJA, PC, Attn: THE ARCADIA BUILDING, C/O: LAWRENCE SAUNDERS, ESQ., PUEBLO, CO, (For Claimant)

RITSEMA LYON, Attn: NANCY HUMMEL, ESQ., DENVER, CO, (For Respondents)