Opinion
W.C. No. 4-198-955
April 23, 1996
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Wells (ALJ) which denied his claim for temporary total disability benefits. We affirm.
This matter was before us previously. Our Order of Remand, dated October 10, 1995, contains an extensive statement of the facts and we will not repeat them here. Essentially, the order directed the ALJ to determine whether the claimant was "at fault" for his separation from employment under the "volitional conduct" standard. If so, we directed the ALJ to determine whether the subsequent loss of wages was to some degree the result of the industrial injury.
On remand, the ALJ found that the claimant quit his employment because he was angry at the employer and wished to avoid a "physical altercation," and because he desired to seek legal advice concerning his right to workers' compensation benefits. The claimant's anger was triggered by the employer's incorrect statement that the claimant's medical treatment was not compensable under the Workers' Compensation Act.
The ALJ found that the claimant's separation was "voluntary" under the volitional conduct standard. Specifically, the ALJ stated that the claimant had "an entire range of possible reactions" to the employer's statements concerning the compensation claim, and the claimant's fear that he might become violent "does not render his termination involuntary." The ALJ also found that the claimant failed to prove that the post-separation wage loss was to some degree connected to the injury.
On this appeal, the only argument is that the ALJ erred in determining that the claimant was "at fault" for the separation. The claimant reasons that the employer's incorrect statements concerning the right to medical benefits rendered the termination "involuntary" because the employer was threatening to deprive the claimant of benefits to which he was legally entitled. In support of this argument, the claimant relies on Centennial Drywall Co., Inc. v. Industrial Commission, 724 P.2d 685 (Colo.App. 1986). We find no error.
As explained in our prior order, we believe the proper standard for judging "fault" is set forth in Padilla v. Digital Equipment Corp., 902 P.2d 414 (Colo.App. 1994) ( Padilla I ). Although we recognize that Padilla I was effectively vacated in Padilla v. Digital Equipment Corp., 908 P.2d 1185 (Colo.App. 1995) ( Padilla II ), Padilla II was not based upon any rejection of the fault standard established in Padilla I.
It follows that the legal question is whether the claimant exercised "a degree of control over the circumstances resulting in [his] termination" in view of the "totality of the circumstances." As we stated previously, resolution of this question is a factual matter for the ALJ.
Here, there is substantial evidence to support the ALJ's conclusion that the claimant was at fault for the separation. The ALJ determined that the claimant had options other than quitting in order to deal with the employer's incorrect statement of the law. Indeed, it was entirely plausible for the ALJ to infer that the claimant could have sought legal advice and filed a claim for benefits without the necessity of terminating his employment. Moreover, the ALJ could infer find that the claimant possessed sufficient self-control to avoid a "physical altercation."
Because the ALJ's findings are supported by the evidence, they must be upheld. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.). Moreover, Centennial Drywall Co., Inc. v. Industrial Commission, supra, is not authority to the contrary. That case merely held that, in view of the facts found by the hearing officer, the evidence supported the conclusion that the claimant's separation from employment was not volitional. The case did not hold that the result was mandated as a matter of law.
We also note that the claimant has not contested the ALJ's determination that the post-termination wage loss was the entirely the result of the separation. Therefore, we do not consider that issue on review.
IT IS THEREFORE ORDERED that the ALJ's order dated December 19, 1995, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Bill WhitacreNOTICE
This Order is final unless an action to modify or vacate the 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, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. (1995 Cum. Supp.).
Copies of this decision were mailed April 23, 1996 to the following parties:
Ron E. DeBias, 1321 Columbine Blvd., Colorado Springs, CO 80907-5702
McCool's Custom Painting, P.O. Box 9994, Colorado Springs, CO 80932
Colorado Compensation Insurance Authority, Attn: C. Kriksciun, Esq. (Interagency Mail)
Steven R. Waldmann, Esq., 303 S. Circle Dr., Ste. 202, Colorado Springs, CO 80910-3000
(For the Claimant)
By: ________________________