Summary
In Bonney v. Pueblo Youth Service Bureau, W.C. No. 4-485-720 (April 24, 2002), an ALJ found an industrial injury physically prevented a claimant from returning to her usual job, and as a result the claimant left the employment.
Summary of this case from In re Triplett, W.C. NoOpinion
W.C. No. 4-485-720
April 24, 2002
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Stuber (ALJ) which awarded the claimant temporary total disability benefits commencing October 10, 2000. The respondents contend the ALJ erred in failing to determine whether the claimant was "responsible" for the loss of employment pursuant to § 8- 42-103(g), C.R.S. 2001, and § 8-42-105(4), C.R.S. 2001. We affirm the award of temporary disability benefits.
The respondents do not dispute the ALJ's findings of fact. The ALJ found the claimant sustained the occupational disease of bilateral overuse syndrome, myofascial pain syndrome, and/or carpal tunnel syndrome in the course of her employment as a secretary/receptionist. Further, the ALJ found that on October 10, 2000, the claimant resigned, giving as reasons the stress of her job and the fact she was "missing some work due to right hand symptoms." The ALJ's finding is supported by the claimant's resignation letter dated October 10, which stated "I am dealing with a problem in my right hand which is causing numbness and strain, there have been times I called off sick, afraid that if you found out about my condition, you would let me go." Further, the claimant testified she quit work because her symptoms made it impossible to continue. (Tr. pp. 20-21, 61-62).
The ALJ found that commencing October 10, 2000, the claimant "was unable to return to her usual job due to the effects of the occupational disease." (Finding of Fact 20). Consequently, the ALJ concluded the claimant was temporarily disabled because the work injury "caused the disability, the disability caused claimant to leave work, and claimant missed more than three regular working days." (Emphasis added). (Conclusion of Law 3). Thus, the ALJ awarded temporary total disability benefits beginning October 10.
The ALJ rejected the respondents' argument the claimant is not entitled to temporary disability benefits because she was "responsible for termination of employment" within the meaning of § 8-42-103(g) and § 8-42-105(4) (collectively the termination statutes). In support of this determination, the ALJ relied on our order in Martinez v. Colorado Springs Disposal, W.C. No. 4-437-497 (March 7, 2001). In that decision we interpreted the termination statutes as applying only in cases were the claimant is terminated from "modified employment," but not in cases were the claimant is separated from the regular or pre-injury employment.
On review, the respondents contend the ALJ incorrectly interpreted the termination statutes by restricting their application to termination of modified employment. Although the respondents' argument is correct, we affirm the ALJ's order because the undisputed findings of fact compel the legal conclusion the claimant was not "responsible" for the termination. See Schrieber v. Brown Root, Inc., 888 P.2d 274 (issue is one of law if undisputed facts lead to a single inference).
Subsequent to the ALJ's order, the Court of Appeals issued its opinion in Colorado Springs Disposal v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 01CA0464, March 28, 2002). In that case, the court held the term "employment," as used in the termination statutes, is broad enough to encompass loss of the claimant's regular or pre-injury employment. Thus, the respondents are correct insofar as they argue the ALJ's order was erroneous in concluding the termination statutes are not applicable to this claim because the claimant never held modified employment.
However, we agree with the claimant that the ALJ's undisputed findings of fact compel the legal conclusion the claimant was not "responsible" for the termination. Therefore, the ALJ's award of temporary disability benefits must be upheld, albeit for reasons different than those stated in the ALJ's order.
Temporary disability benefits are designed to protect the claimant against the loss of earnings caused by the industrial injury prior to the time the claimant reaches maximum medical improvement and any residual loss of earning capacity becomes permanent. See City of Colorado Springs v. Industrial Claim Appeals Office, 954 P.2d 637 (Colo.App. 1997); Lunsford v. Sawatsky, 780 P.2d 76 (Colo.App. 1989). Hence, temporary disability benefits are payable when an industrial injury causes disability, the claimant leaves work as a result of the injury, and the temporary disability is total and lasts for more than three working days. Section 8-42-103 (1)(a), C.R.S. 2001 ; City of Colorado Springs v. Industrial Claim Appeals Office, supra. Disability exists when the effects of the injury cause "medical incapacity" which renders the claimant unable fully or effectively to perform the duties of the pre-injury employment. See Culver v. Ace Electric, 971 P.2d 641, 649 (Colo. 1999)
Of course, 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 Colorado Springs Disposal v. Industrial Claim Appeals Office, supra, the court stated the term "responsible," as used in the termination statutes, "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. 1995). Prior to PDM, the concept of "fault" was analogized to the definition of "fault" used in adjudicating claims for unemployment insurance benefits. Thus, the fault determination depended on whether the claimant performed some "volitional act or otherwise exercised a degree of control over the circumstances resulting in the termination." See Padilla v. Digital Equipment Corp., 902 P.2d 414, 416 (Colo.App. 1994), opinion after remand, 908 P.2d 1185 (Colo.App. 1995).
In the unemployment context, fault is not equivalent to culpability, nor does it necessarily depend on whether the employee or the employer initiated the actual separation from employment. See Goddard v. E G G Rocky Flats, Inc., 888 P.2d 369 (Colo.App. 1994); Padilla v. Digital Equipment Corp., supra. Moreover, it has been held a claimant was not "at fault" for failing to comply with the employer's absence from work policy where the claimant was physically unable to notify the employer. Pepsi-Cola Bottling Co. v. Division of Employment and Training, 754 P.2d 1382 (Colo.App. 1988).
In the context of a workers' compensation case, a similar result was reached in Bestway Concrete v. Industrial Claim Appeals Office, 984 P.2d 680 (Colo.App. 1999). In Bestway, the claimant was a cement truck driver who suffered a compensable leg injury. Soon thereafter one of the treating physicians released the claimant to regular employment. The claimant returned to regular employment, but was discharged the same day for "popping the clutch" on a truck. Although the ALJ made no "explicit" determination concerning whether the claimant was "at fault" for the separation, the ALJ credited the opinion of a second treating physician that the claimant was restricted from working, and also credited the claimant's testimony he "popped the clutch" because the injury rendered him too weak to operate it. Under these circumstances, the court affirmed our conclusions that the ALJ's findings amounted to a determination the claimant was not "at fault" for the loss of the employment, and in any event, the post-separation wage loss was to some degree caused by the injury. Id. at 686.
Here, the ALJ found the claimant's resignation from regular employment was motivated by her belief she was no longer able to perform the duties of the job. Further, the ALJ found the claimant was, as a matter of fact, disabled because she could no longer perform the duties of her regular employment. Under these circumstances, the claimant's reasons for terminating the employment were not the result of "volitional conduct" or control over the circumstances of the separation. Rather, the separation was caused the development of disabling physical limitations resulting from the occupational disease, circumstances for which the claimant may not be held "responsible" within the meaning of that term.
Moreover, the term " responsible," as used in the termination statutes, may not be construed in a fashion which undermines the "overall scheme of the Act." Colorado Springs Disposal v. Industrial Claim Appeals Office, supra, Slip op. at 8. In Colorado Springs Disposal 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." Slip op. at 9.
Similarly, 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. As noted above, 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. In such circumstances the claimant stands at a competitive disadvantage in the open labor market, and this disadvantage is the very loss for which temporary disability benefits are awarded. Schlage Lock v. Lahr, 870 P.2d 615 (Colo.App. 1993). Indeed, 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. Black Roofing v. Inc. v. West, 967 P.2d 195 (Colo.App. 1998).
Here, the respondents propose to interpret the termination statutes as permitting denial of temporary disability benefits if the claimant terminates the employment relationship under circumstances when the industrial injury has rendered the claimant unable to continue performing the pre-injury work. The respondents advocate this result despite the absence of evidence in the record that the employer would have provided the claimant work within her restrictions so as to eliminate or ameliorate the wage loss. Indeed, had the employer wished to offer such work it was free to do so, and the claimant would be required to accept the offer or face the loss of temporary disability benefits. Section 8-42-105(3)(d)(I), C.R.S. 2001. In our view, the respondents' interpretation of the term "responsible" would be analogous to holding the claimant "responsible" for the injury-producing conduct, and would undermine the very principles on which an award of temporary disability benefits is based. Such an interpretation would appear to be contrary to even the most stringent concept of "responsibility" or "fault"for the termination of employment. For instance, in Monfort of Colorado v. Husson, 725 P.2d 67 (Colo.App. 1986), the court stated that "only the physical inability to continue the job duties arising from the injury in question would render the subsequent unemployment compensable." Id. at 70.
Thus, we conclude a claimant who terminates the pre-injury employment relationship because the industrial injury has rendered the claimant physically unable to continue to perform the duties of regular employment is not "responsible" for the loss of the employment. Cf. Gregg v. Lawrence Construction Co., W.C. No. 4-475-888 (April 22, 2002). Of course, if the employer wishes to offer modified employment within the claimant's restrictions, the provisions of § 8-42-105(3) obviously apply.
IT IS THEREFORE ORDERED that the ALJ's order dated October 3, 2001, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Bill WhitacreNOTICE
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, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2001. 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 Street, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed April 24, 2002 to the following parties:
Vicky W. Bonney, 1837 E. 13th St., Pueblo, CO 81001
Pueblo Youth Service Bureau, 4035 Club Manor Dr., Pueblo, CO 81008-2022
Curt Kriksciun, Esq., Colorado Compensation Insurance Authority d/b/a Pinnacol Assurance — Interagency Mail (For Respondents)
Patrick C.H. Spencer II, Esq. Kathleen W. Robinson, Esq., Spencer Spencer, P.C., 403 South Tejon Street, Colorado Springs, CO 80903 (For the Claimant)
Richard M. Lamphere, Esq., 111 S. Tejon St., Suite 700, Colorado Springs, CO 80903
By: A. Hurtado