Opinion
W.C. No. 4-580-205
April 2, 2004
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) which denied a claim for temporary total disability (TTD) from May 15, 2003, to July 7, 2003. The claimant contends the ALJ erred as a matter of law in finding he was "responsible" for termination from post-injury employment. We affirm.
The ALJ found the claimant was employed as a utilities meter reader commencing in September 2002. In October, November, and December 2002 the claimant had difficulty completing his route in a timely fashion and also failed to meet the employer's accuracy standards. The claimant met the accuracy standards from January 15, 2003, to March 15, 2003.
On March 27, 2003, the claimant injured his back and was diagnosed with cervical and thoracic sprains. On April 1, 2003, the treating physician restricted the claimant from working overtime, and on April 15 the physician imposed additional restrictions against prolonged standing, walking, or sitting. Despite the imposition of these restrictions, the claimant continued performing his regular duties, which required substantial walking.
The claimant failed to meet accuracy standards from April 15 to May 15, 2003. On May 15 the claimant was terminated because he was inaccurate and was still having difficulty completing his routes in a timely fashion.
Based on this evidence, the ALJ found the claimant failed to prove that he was disabled by the industrial injury. Specifically, the ALJ credited the claimant's own testimony that, despite experiencing pain, he was able to continue performing his regular duties as a meter reader after the injury. Consequently, the ALJ denied the claim for TTD benefits.
The ALJ went on to find that even if the claimant proved some disability, he was "responsible" for the termination from employment within the meaning of § 8-42-103(1)(g), C.R.S. 2003, and § 8-42-105(4), C.R.S. 2003 (termination statutes). In support, the ALJ found the claimant was capable of developing the skills necessary to meet the employer's standards of timeliness and accuracy, but failed to do so. Thus, the ALJ concluded the claimant engaged in volitional conduct which affected the termination.
On review, the claimant's sole argument is that the ALJ erred in determining "that a claimant's inability to perform a job is the claimant's fault." In support of this argument the claimant notes that the Colorado Employment Security Act, § 8-73-108(4)(j), C.R.S. 2003, permits an award of unemployment benefits if the claimant is "physically or mentally unable to perform the work or unqualified to perform the work as a result of insufficient educational attainment or inadequate occupational or professional skills." We need not reach the claimant's argument.
The ALJ found the claimant failed to prove the injury caused a "disability" within the meaning of § 8-42-103(1), C.R.S. 2003, because the claimant himself admitted that the restrictions imposed by the treating physician did not prevent him from performing his pre- injury duties. As the ALJ recognized the claimant was required to prove a disability, and disability exists when the physical or mental effects of the injury eliminate or reduce the claimant's ability to resume his or her prior work. Culver v. Ace Electric, 971 P.2d 641, 649 (Colo. 1999); Colorado Compensation Insurance Authority v. Industrial Claim Appeals Office, 18 P.3d 790 (Colo.App. 2000) (claimant has initial burden to establish that injury caused a disability resulting in wage loss). The question of whether the claimant has proven disability is one of fact, and the ALJ's resolution of this question must be upheld is supported by substantial evidence in the record. Lymburn v. Symbios Logic, 952 P.2d 831 (Colo.App. 1997). Where the evidence shows the claimant was able to resume the duties of the prior employment after the injury, the record supports a finding that the claimant failed to prove a "disability" which would entitle him to TTD benefits. Davisson v. Rocky Mountain Safety, Inc., W.C. No. 4-283-201 (June 21, 1999); Hendricks v. Keebler Co., W.C. No. 4-373-392 (June 11, 1999).
Here, the ALJ found the claimant failed to meet the threshold burden of proof to establish that the industrial injury caused disability. The claimant has advanced no argument which disputes the ALJ's legal conclusion or the sufficiency of the evidence to support this finding. Moreover, our review of the record establishes that in this respect the ALJ's order is legally correct an supported by the record. Consequently, we may not disturb it. Section 8-43-301(8), C.R.S. 2003.
It follows that we need not reach the claimant's argument that the ALJ erred in his application of the termination statutes. As we have previously held, the termination statutes constitute an affirmative defense to a claim for TTD benefits because these statutes assume the claimant has established an otherwise valid claim for TTD benefits. The respondents must prove the "temporarily disabled employee" was "responsible" for the termination of employment, thereby negating the claimant's entitlement to TTD benefits. See Valley Tree Service v. Jiminez, 787 P.2d 658 (Colo.App. 1990) (defining affirmative defense); White- Skunk v. QK, Inc. d/b/a Denny's, W.C. No. 4-500-149 (October 3, 2002) (holding termination statutes are affirmative defenses).
In this case, the ALJ has determined the claimant failed to prove entitlement to TTD benefits. Thus, even if we were to conclude the ALJ erred in applying the termination statutes to these facts, the claimant would still not be entitled to TTD benefits. It follows that the error, if any, is harmless because it does not affect the claimant's overall entitlement to benefits or negate the validity of the order. See § 8-43-310, C.R.S. 2003 (court shall disregard error if it does not damage complaining party).
IT IS THEREFORE ORDERED that the ALJ's order dated October 21, 2003, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. DeanNOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a Petition to Review with the Court, within twenty (20) days after the date this Order was mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2003. The appealing party must serve a copy of the Petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this order were mailed to the parties at the addresses shown below on April 2, 2004 by A. Hurtado.
Ronald Warttman, 2862 Serendipity Circle West, Colorado Springs, CO 80917
Lori Stillmunks, City of Colorado Springs, P. O. Box 1575-630, Colorado Springs, CO 80901
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909-4349 (For Claimant)
Joseph C. Irwin, Esq., City Attorney's Office, 30 S. Nevada, #501, P. O. Box 1575, Mail Code 510, Colorado Springs, CO 80903 (For Respondent)