Opinion
W.C. No. 4-556-576
November 3, 2003
ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) which determined the claimant was responsible for the termination of his employment, and is therefore barred from receiving temporary disability benefits under § 8-42-105(4), C.R.S. 2003. We set aside the order and remand the matter for entry of a new order.
The ALJ found that as a result of repetitive heaving lifting required in the claimant's employment as a form setter, the claimant sustained bilateral inguinal hernias. On September 17, 2002, the claimant sought treatment from the employer's designated provider. The designated provider opined the hernias were not work-related and therefore directed the claimant to seek treatment through his personal physician. However, the provider recommended the claimant avoid heavy lifting because that could aggravate the claimant's condition. When the claimant returned to work, he did not provide the employer a copy of the provider's report, report a work-related injury, or request modified employment. Rather, the claimant continued to perform his regular job duties through September 24, 2002. On that date, the claimant told the employer he was quitting because he had to have an operation and needed to be able to qualify for an indigency program to pay the cost of surgery.
The ALJ determined the claimant was temporarily disabled effective September 25, 2002, because he was physically precluded from heavy lifting as a result of the industrial injuries. However, the ALJ further determined the claimant was responsible for the termination of employment on September 24. Therefore, the ALJ denied the claim for temporary disability benefits after September 24, 2002.
On review, the claimant concedes he quit the employment. However, the claimant contends the ALJ erroneously determined he is barred from receiving temporary disability benefits. We conclude the ALJ's findings are insufficient to resolve this issue. Therefore, we remand the matter for additional findings. § 8-43-301(8), C.R.S. 2003; Alfaro v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 03CA0165, August 28, 2003).
The purpose of temporary disability benefits is to compensate for the temporary loss of wages which occurs when restrictions caused by the industrial injury render the claimant physically unable to perform the duties of regular employment. See Monfort of Colorado v. Husson, 725 P.2d 67 (Colo.App. 1986). To receive temporary disability benefits, the claimant is required to establish a causal connection between the industrial disability and the loss of wages. Once the claimant establishes that the injury has caused disability, and that the claimant left work as a result of the disability, the right to temporary benefits is measured by the degree of the wage loss, not the claimant's willingness to search for alternative employment or his hypothetical ability to perform alternative employment. Schlage Lock v. Lahr, 870 P.2d 615 (Colo.App. 1993); Black Roofing v. Inc. v. West, 967 P.2d 195 (Colo.App. 1998).
However, § 8-42-105(4) and identical language in § 8-42-103(1)(f), C.R.S. 2003 [the termination statutes], provide 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 Longmont Toyota Inc., v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 02CA0441, February 13, 2003), the court held that the term "resulting wage loss" means "any wage loss following a termination" for which the claimant is responsible, and that the statute is a "permanent bar" to the receipt of temporary disability benefits, except where the claimant's disability is the result of a "work-related aggravation of the old injury or a new injury." Slip op. 7.
In Colorado Springs Disposal v. Industrial Claim Appeals Office, 58 P.3d 1061, 1064 (Colo.App. 2002), the court held the term "responsible" "appears to introduce into the 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.App. 1995). That concept, the court held, focuses on the reason for, or cause of the termination apart from the reasons for the cause of the injury.
Prior to PDM, and after as well, the concept of "fault" was analogized to the definition of fault used in adjudicating claims for unemployment insurance benefits. Padilla v. Digital Equipment Corp., 902 P.2d 414 (Colo.App. 1994); opinion after remand, 908 P.2d 1185 (Colo.App. 1995). In unemployment claims, the concept of "fault" at a minimum, requires a volitional act or the exercise of some control over the circumstances leading to the separation. See Gonzales v. Industrial Commission, 740 P.2d 999 (Colo. 1987). However, in that context, an employee is not considered to be at "fault" for quitting a job he is physically unable to perform. See Electronic Fab Technology Corp. v. Wood, 749 P.2d 470 (Colo.App. 1987); cf. Pepsi-Cola Bottling Co. v. Division of Employment and Training, 754 P.2d 1382 (Colo.App. 1988) (claimant is not "at fault" for failure to comply with the employer's absence policy if the claimant is not physically able to notify the employer).
In Colorado Springs Disposal v. Industrial Claim Appeals Office, 58 P.3d at 1063, the court noted that the Workers' Compensation Act is intended to provide compensation regardless of "fault" and therefore, declined to define the term " responsible," in a fashion which undermined the "overall scheme of the Act." Consequently, the court held the "word `responsible' does not refer to an employee's injury or injury-producing activity." The court reasoned that treating a claimant as "responsible" for the loss of employment resulting from "injury-producing conduct" would "dramatically alter" the "mutual renunciation of common-law rights and defenses by employers and employees alike." Ibid at 1064. Thus, the court held that the termination statute did not apply to a claimant who was fired for careless driving during a one-vehicle accident which caused his injuries.
In Bonney v. Pueblo Youth Service Bureau, W.C. No. 4-485-720 (April 24, 2002), an ALJ found an industrial injury prevented the claimant from returning to her usual job, and caused the claimant to leave work and sustain a wage loss. Relying on Colorado Springs Disposal, we held that treating a claimant as "responsible" for loss of employment caused by physical limitations resulting from the compensable injury itself would significantly alter fundamental principles of the Act. We adhere to our prior conclusions.
Similarly, in Gregg v. Lawrence Construction Company, W.C. No. 4-475-888 (April 22, 2002), we upheld a determination that the claimant was not responsible for the termination of employment where she informed the employer she was "resigning" on the advice of her physician due to industrial injury. The court upheld our conclusions in Lawrence Construction Co., v. Industrial Claim Appeals Office (Colo.App. No. 02CA0926, January 30, 2001) (not selected for publication). In do doing, the court held that a resigning claimant is not required to provide an employer with the opportunity to offer modified employment to recover temporary disability benefits on account of the subsequent wage loss.
Here, the ALJ found the employer did not force the claimant to quit his employment, and that the claimant was in "entirely in control" of the termination. However, the fact that the claimant resigned voluntarily is not dispositive of the determination of fault. Rather, the pertinent issue is the reason the claimant quit. Colorado Springs Disposal v. Industrial Claim Appeals Office, supra; Lawrence Construction Co., v. Industrial Claim Appeals Office, supra; Bonney v. Pueblo Youth Service Bureau, supra. This is true because the claimant is not "responsible" where the termination is the result of the injury.
We note the ALJ's finding that the industrial injury rendered the claimant temporarily totally disabled effective September 25 and that the claimant informed the employer he was quitting to provide a financial mechanism for his surgery. However, the ALJ did not find whether, in fact, the claimant needed to terminate his employment in order to obtain the necessary medical treatment. If the claimant was compelled to resign from this employment such that it can be said the termination was a necessary and natural consequence of the injury, rather than the claimant's subjective choice, the claimant would not be at fault for the termination.
Since the ALJ's remaining findings of fact are insufficient to resolve this issue, the case shall be remanded for further proceedings. In entering additional findings and conclusions, the ALJ shall note that it is the respondents' burden to prove that the claimant is responsible for his termination and barred from receiving temporary disability benefits under the statute.
In view of our disposition, it is premature to consider the claimant's further arguments.
IT IS THEREFORE ORDERED that the ALJ's order dated March 28, 2003, is set aside and the matter is remanded to the ALJ for the entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Kathy E. Dean
______________________________ Dona Halsey
Copies of this decision were mailed November 3, 2003 to the following parties:
Fred Blair, c/o William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909-4349.
Art C. Klein Construction, Inc., 3370 Chelton Loop South, Colorado Springs, CO 80909-6417.
Legal Department, Pinnacol Assurance — Interagency Mail William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909-4349 (For Claimant).
Merrily S. Archer, Esq. and Douglas P. Ruegsegger, Esq., 1625 Broadway, #2300, Denver, CO 80202 (For Respondents).
BY: A. Hurtado