Opinion
W.C. No. 4-580-204
June 24, 2004
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Martinez (ALJ) which denied his request for temporary total disability benefits after June 1, 2003. We affirm.
The ALJ's pertinent findings may be summarized as follows. The claimant suffered compensable injuries on May 1, 2003, when he stepped on a pallet that broke, causing him to fall, twist and strain his left knee and injury his left shoulder. As a result of the injuries, the claimant was medically precluded from performing his regular duties as a machinist. The claimant was specifically precluded from overhead work with the left shoulder, driving a standard transmission, and lifting more than 3 pounds with the left upper extremity. However, Dr. Gorman opined the claimant could perform work as a machinist as long as the claimant operated a lathe with the right hand only.
On May 20, the claimant accepted a written offer of modified employment. Thereafter, the claimant performed menial light duty tasks. Occasionally the claimant assisted a machinist with duties within his restrictions.
On May 30, the claimant requested permission to leave work early. The claimant was given permission to leave at 11:00 a.m. However, at approximately 10:30 the employer told the claimant he could not leave early because he was needed to fly-cut two impellers on a lathe. After lunch the claimant did not return to work, which caused a disruption in the employer's production schedule. The employer terminated the claimant's employment on June 2. On August 1, 2003 the claimant underwent left knee arthroscopic surgery and was released from all employment.
Based upon these findings, the ALJ determined the termination of employment was caused by the claimant's volitional decision to ignore the employer's directive that he return after lunch on May 30. In so finding, the ALJ rejected the claimant's contention that fly- cutting impellers exceeded his medical restrictions. Therefore, the ALJ determined the claimant was responsible for the termination of employment and barred by § 8-42-105(4), C.R.S. 2003, from receiving temporary total disability benefits in connection with the subsequent wage loss.
On review the claimant renews the arguments made before the ALJ. Specifically, the claimant contends his failure to return to work was not volitional because he was given permission to leave early and had no notice his absence could result in the termination of his employment. In any case, the claimant argues he was physically unable to fly-cut two impellers. Further, the claimant contends his wage loss was the result of his need for surgery, not the personnel violation. In this regard the claimant contends Longmont Toyota Inc., v. Industrial Claim Appeals Office, 85 P.3d 548 (Colo.App. 2003), cert. granted, (03SC450, March 8, 2004) wrongly construed § 8-42-105(4) as a permanent bar to all temporary total disability benefits. We perceive no basis to disturb the ALJ's order.
To receive temporary disability benefits, a claimant must establish a causal connection between the industrial disability and the loss of wages. Section 8-42-103(1), C.R.S. 2003. Section 8-42-103(1)(g) and identical language in § 8-42-105(4) (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, 58 P.3d 1061 (Colo.App. 2002), the Court of Appeals held that the term "responsible" introduces 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). A claimant is "responsible" if the claimant precipitated the employment termination by a volitional act in light of the totality of circumstances. In Padilla v. Equipment Corp. 902 P.2d 414, 416 (Colo.App. 1994), the court stated that "at a minimum, to be deemed at fault or responsible for his discharge, claimant must have performed some volitional act or otherwise exercised a degree of control over the circumstances resulting in the termination."
In most cases the question of whether the claimant acted volitionally is a question of fact for determination by the ALJ. Consequently, we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2003.
Under the substantial evidence standard we must review the evidence in the light most favorable to the prevailing party, and accept the ALJ's resolution of conflicts in the evidence, as well as the plausible inferences which he drew from the evidence. 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). This standard also affords the ALJ broad discretion in assessing the weight and sufficiency of the evidence, and we may not disturb the ALJ's credibility determinations unless there is hard, certain evidence directly contrary to the testimony which the ALJ found credible. See Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986); Johnson v. Industrial Claim Appeals Office, 973 P.2d 624 (Colo.App. 1997). Consequently, the ALJ's credibility determinations are binding except in extreme circumstances. Arenas v. Industrial Claim Appeals Office, 8 P.3d 558 (Colo.App. 2000). We perceive no extreme circumstances here.
There was a direct conflict between the claimant and the respondents' witnesses concerning the reason for the claimant's discharge. Within his sole prerogative, the ALJ resolved the conflict in favor of the respondents and credited the respondents' testimony that the employer rescinded permission for the claimant to leave work before noon on May 30 after the employer discovered the claimant was needed to cut two impellers. Martinez v. Regional Transportation District, 832 P.2d 1060 (Colo.App. 1992) (ALJ's credibility determinations articulate basis for resolution of conflicts). Because the ALJ was persuaded the employer notified the claimant that he was required to return to work after lunch on May 30, the ALJ could reasonably infer that the claimant exercised some control over his failure to return to work after lunch on May 30. Moreover, the ALJ implicitly credited the respondent's testimony that the claimant was capable of operating a lathe to cut the impellers without exceeding his one-hand restriction.
The claimant is obviously dissatisfied with the ALJ's credibility determinations. However, based upon this record we cannot say that, as a matter of law, the ALJ erroneously rejected the testimony of the claimant. See Levy v. Everson Plumbing Co., Inc., 171 Colo. 468, 468 P.2d 34 (1970) (ALJ not required to credit the claimant's testimony even if uncontroverted). Consequently, the fact the claimant's testimony if credited, might support a contrary result does not afford us grounds to grant appellate relief. See F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985) Further, the ALJ's findings support the conclusion the claimant was responsible for the termination of employment. Colorado Springs Disposal v. Industrial Claim Appeals Office, supra.
We also reject the claimant's contention the ALJ erroneously found the claimant was permanently barred from receiving temporary disability benefits. As argued by the claimant, we issued a series of decisions beginning with Anderson v. Longmont Toyota Inc., W.C. No. 4-465-839 (February 13, 2002), and including Lovato v. Cathedral of Sacred Heart, W.C. No. 4-463-726 (May 13, 2002) ; Selvage v. Terrace Gardens, W.C. No. 4-486-812 (September 23, 2002) ; Taylor v. Backwood Video, W.C. No. 4-501-466 (January 16, 2003), and Krause v. Sorter Construction Inc., W.C. No. 4-525-245 (January 29, 2003), in which we concluded that the phrase "resulting wage loss" as used in § 8-42-105(4), refers to wage loss which is the consequence of the claimant's volitional conduct that caused the termination of employment.
In Anderson v. Longmont Toyota Inc., supra, the claimant's condition worsened after the claimant was discharged from modified employment. The claimant was responsible for the discharge. However, the modified employment exceeded the medical restrictions imposed for the worsened condition, and no modified employment within the claimant's new restrictions was offered. Under these circumstances, we concluded the claimant's wage loss following the worsening of his condition was not a consequence of the earlier volitional conduct which caused the loss of the modified employment. Rather, the wage loss then resulted from the disability caused by the injury because in the absence of the volitional conduct the claimant would still have suffered a total wage loss when the worsened condition precluded him from being physically able to perform the modified work that was offered. Cf. El Paso County Department of Social Services v. Donn, 865 P.2d 877 (Colo.App. 1993) (claimant's voluntary retirement did not preclude a subsequent award of temporary total disability benefits where the claimant's condition subsequently worsened). However, in Longmont Toyota Inc., v. Industrial Claim Appeals Office, supra.
This claim is factually similar to Longmont Toyota Inc., v. Industrial Claim Appeals Office, supra, in that the claimant alleges that his wage loss is not the result of his separation from the respondent-employer but his medical condition which necessitated surgery on August 1, 2003. However, in Longmont Toyota the court specifically concluded that the legislative intent of § 8-42-105(4) is to "completely cut off temporary benefits whenever an injured work is responsible for the separation from the employment." Consequently, the court held that the term resulting 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. Slip op. p. 7. Thus, the court rejected our conclusion that § 8-42-105(4) does not bar the claimant from recovering temporary disability benefits where the claimant's disability is the result of a natural worsening of the industrial injury. Rather, the only exceptions mentioned by the court occur when the claimant's disability is the result of a "work-related aggravation of the old injury or a new injury." Slip op. 7.
We and the ALJ are bound by published decisions of the Court of Appeals unless modified or reversed by the Supreme Court. C.A.R. 35(f). Further, the facts presented here do not fall into one of the exceptions discussed by the court in Longmont Toyota. Therefore, in view of the court's conclusion that § 8-42-105(4) is a "permanent" and "complete" bar to the receipt of temporary disability benefits for "any wage loss" following a termination for which the claimant is responsible, we are compelled to conclude the ALJ correctly denied the claim for temporary disability benefits following the termination of employment.
IT IS THEREFORE ORDERED that the ALJ's order dated December 1, 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, 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. 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 June 24, 2004 by A. Hurtado.
Michael Bosshardt, 3219 Main St., Clifton, CO 81520
Mary Spendrup, SMJ, Inc., 2384 Leland Ave., P. O. Box 55034, Grand Junction, CO 81505
California Indemnity Insurance Co., c/o Michelle DeAngelo, Sierra Insurance Group, P. O. Box 6597, Englewood, CO 80155-6597
David B. Mueller, Esq., P. O. Box 3207, Grand Junction, CO 81502 (For Claimant)
M. Frances McCracken, Esq., 518 28 Road, #A207, Grand Junction, CO 81521 (For Respondents)
M. Frances McCracken, Esq. and Harvey D. Flewelling, Esq., 5353 W. Dartmouth Ave., #400, Denver, CO 80227 (For Respondents)