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In re Gaulden-Pee, W.C. No

Industrial Claim Appeals Office
Jun 10, 2004
W.C. No. 4-590-627 (Colo. Ind. App. Jun. 10, 2004)

Opinion

W.C. No. 4-590-627.

June 10, 2004.


FINAL ORDER

The claimant seeks review of an order of Administrative Law Judge Friend (ALJ) which denied temporary disability benefits. We affirm.

The claimant suffered an admitted injury in April 2003. The employer discharged the claimant on August 8, 2003. The parties stipulated that at the time of the discharge, the claimant was medically restricted from performing her regular job duties.

The ALJ found the claimant was discharged for schedule deviations in excess of the maximum number allowed by the employer's "Disciplinary Policy and Schedule Deviation Policy." The ALJ also found that the deviations were the result of the claimant's volitional acts. Therefore, the ALJ determined the claimant was responsible for the employment termination and barred from receiving temporary disability benefits pursuant to § 8-42-105(4), C.R.S. 2003.

On review, the claimant alleged the ALJ "erred in denying temporary total disability benefits." As we understand the claimant's argument, she also contends Longmont Toyota Inc., v. Industrial Claim Appeals Office, 85 P.3d 548 (Colo.App. 2003), cert. granted, March 8, 2004 (03SC450), was wrongly decided and seeks to preserve that argument for further review. See letter March 19, 2004. However, the claimant has not filed a brief in support of the Petition to Review and consequently, the effectiveness of our review is limited. Ortiz v. Industrial Commission, 734 P.2d 642 (Colo.App. 1986).

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), C.R.S. 2003, 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). In Padilla v. Digital Equipment Corp., 902 P.2d 414, 416 (Colo.App. 1994), set aside on other grounds, 908 P.2d 1185 (Colo.App. 1995), the court held 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."

The question of whether the claimant acted volitionally in causing the termination from employment is generally a question of fact for determination by the ALJ. Colorado Springs Disposal v. Industrial Claim Appeals Office, supra. 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.

We have reviewed the ALJ's findings of fact. The ALJ's findings are sufficient to permit appellate review, and the findings indicate that the ALJ resolved conflicts in the evidence based upon his credibility determinations. See Riddle v. Ampex Corp., 839 P.2d 489 (Colo.App. 1992). Further, the claimant has not provided a transcript of the hearing on January 29, 2004. See § 8-43-301(2), C.R.S. 2003. Under these circumstances, we are required to presume the ALJ's findings of fact are supported by substantial evidence in the record. Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo.App. 1988). Moreover, the findings support the denial of temporary total disability benefits. See Colorado Springs Disposal v. Industrial Claim Appeals Office, supra. Therefore, the claimant has failed to establish a basis which permits us to set aside the ALJ's order. Section 8-43-301(8).

We note that in Longmont Toyota Inc., v. Industrial Claim Appeals Office, supra, the court held that the termination statutes create 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. Ibid at 551. 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." Ibid at 551.

We are bound by published decisions of the Court of Appeals unless and until 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, the ALJ's order is consistent with Longmont Toyota and must be upheld.

IT IS THEREFORE ORDERED that the ALJ's order dated February 6, 2004, is affirmed.

INDUSTRIAL CLAIM APPEALS PANEL

______________________________ Kathy E. Dean

______________________________ Dona Halsey

Jynel Gaulden-Pee, Colorado Springs, CO.

Katherine O'Hara, Adelphia, Colorado Springs, CO.

E.C. Pierce, Royal SunAlliance Insurance, Englewood, CO.

William A. Alexander, Jr., Esq., Colorado Springs, CO, (For Claimant).

Carol A. Finley, Esq. and T. Paul Krueger, II, Esq., Colorado Springs, CO, (For Respondents).


Summaries of

In re Gaulden-Pee, W.C. No

Industrial Claim Appeals Office
Jun 10, 2004
W.C. No. 4-590-627 (Colo. Ind. App. Jun. 10, 2004)
Case details for

In re Gaulden-Pee, W.C. No

Case Details

Full title:IN THE MATTER OF THE CLAIM OF JYNEL GAULDEN-PEE, Claimant, v. ADELPHIA…

Court:Industrial Claim Appeals Office

Date published: Jun 10, 2004

Citations

W.C. No. 4-590-627 (Colo. Ind. App. Jun. 10, 2004)