Opinion
W. C. Nos. 4-659-373, 4-659-373.
March 4, 2007.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Harr (ALJ) dated September 1, 2006 that denied and dismissed the claimant's claim for a shoulder injury and that denied temporary total disability benefits after September 15, 2005. We affirm.
A hearing was held on the issues whether the claimant's shoulder problems were related to his compensable injury, and whether he was entitled to temporary total disability benefits. Following the hearing the ALJ entered findings of fact that for the purposes of this order may be summarized as follows. The employer is a temporary agency that contracts with clients to provide to them employees for limited term assignments, who then work under the supervision of the clients. The claimant was working at such an assignment when he sustained a compensable injury to his right elbow in an accident involving a fall from a ladder. Although the claimant testified that he injured his right shoulder in the fall, the ALJ found that that testimony was inconsistent with his reports to treating physicians during the five weeks following the accident. The employer referred the claimant to Concentra Medical Centers, where he was treated by Dr. Holmboe nine times between August 17, 2005 and March 14, 2006. The claimant reported in writing to Dr. Holmboe that he injured his right elbow and leg, and although the claimant testified that he reported a shoulder injury to the doctor, the latter disputed that testimony and denied that the claimant had reported a shoulder injury. Following his initial appointment with Dr. Holmboe the claimant underwent drug testing pursuant to the employer's written procedures. His urine sample disclosed the presence of cannabinoids in his system and the claimant conceded that he had ingested marijuana by smoking it on the Friday prior to his injury. He was discharged from his employment and the ALJ found that the claimant was responsible for the termination of his employment. The ALJ further found that the claimant was aware of the employer's drug policy and that he reasonably should have known that smoking marijuana could result in his dismissal.
The claimant received additional medical treatment from Dr. Motz, who referred him to Dr. Alijani for surgery on his elbow. Both Dr. Motz and Dr. Alijani testified that the claimant did not report any shoulder symptoms or problems during their treatment of him. Dr. Holmboe evaluated the claimant again on September 14, 2005 and referred him to Rod Tague for physical therapy. On September 21, 2005, the claimant completed a pain diagram for Tague as part of the latter's intake procedures. The claimant recorded on that document that he was experiencing pain and a burning sensation in his right shoulder. A physician's assistant, Glen Petersen, first diagnosed a shoulder strain when he evaluated the claimant on September 28, 2005. Dr. Alijani saw the claimant again on October 14, 2005, the claimant for the first time complained of right shoulder weakness and pain. Dr. Holmboe ordered magnetic resonance imaging (MRI) of the claimant's shoulder, which revealed certain findings including degenerative changes that were unrelated to the compensable accident. The MRI also revealed a tear of the cartilage in the claimant's shoulder, which Dr. Holmboe opined was consistent with the "mechanism" of his accident; however, he also stated that the first complaint of symptoms five weeks after the accident was inconsistent with a causal connection between the two. Dr. Alijani stated that the "classic" cause of such a finding was overhead work, and that if the accident had caused the tear it would have resulted in symptoms within two weeks. Dr. McCranie, to whom the claimant had been referred, stated that the tear was more likely the result of trauma.
The ALJ weighed the conflicting lay and medical testimony and concluded that the claimant failed to carry his burden of showing that his shoulder problems were the result of the compensable accident. Accordingly, he denied compensation and benefits in connection with that disability. He also concluded that the claimant was temporarily disabled by the injury from August 17, 2005, until he was terminated for cause on September 14, 2005, and, accordingly, he awarded temporary total disability benefits during that period.
The claimant appealed and argues, first, that the record does not contain substantial evidence supporting the ALJ's conclusion that the shoulder problems were not caused by the compensable accident and, second, that the ALJ erred in concluding that he was responsible for termination of his employment. However, we are unpersuaded that the ALJ committed reversible error and we therefore affirm the order.
I.
The claimant first argues that no substantial evidence exists in the record supporting the ALJ's denial of benefits for the shoulder injury. Although the claimant concedes that Dr. Alijani opined that the shoulder problems were not caused by the compensable accident, the claimant argues that he "hesitated" to give that opinion, that he had previously given a conflicting opinion, and that the contrary opinions of Dr. Holmboe and Dr. McCranie were more persuasive and should have been credited. However, the claimant is essentially requesting that we reweigh the evidence and reach a conclusion different from that drawn by the ALJ. Because the assessment of the quality and persuasiveness of conflicting evidence is solely within the province of the ALJ, we may not provide the claimant with the relief he seeks.
The claimant had the burden to prove that his alleged disability was proximately caused by an injury arising out of and in the course of his employment. Section 8-41-301(1)(c), C.R.S. 2004. Whether the claimant met that burden of proof is a factual question for resolution by the ALJ, and his determination must be upheld if supported by substantial evidence in the record. Dover Elevator Co. v. Industrial Claim Appeals Office, 961 P.2d 1141 (Colo.App. 1998). Substantial evidence is that quantum of probative evidence which a rational fact finder would accept as adequate to support a conclusion without regard to the existence of conflicting evidence. Durocher v. Industrial Claim Appeals Office, 905 P.2d 4 (Colo.App. 1995).
Under this standard of review it is the ALJ=s sole prerogative to evaluate the credibility of the witnesses and the probative value of the evidence. We may not substitute our judgment for that of the ALJ unless the testimony the ALJ found persuasive is rebutted by such hard, certain evidence that it would be error as a matter of law to credit the testimony. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986). Testimony which is merely biased, inconsistent, or conflicting is not necessarily incredible as a matter of law. People v. Ramirez, 30 P.3d 807 (Colo.App. 2001). The existence of evidence which, if credited, might permit a contrary result also affords no basis for relief on appeal. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002). Moreover, the ALJ=s order is sufficient for purposes of review if the legal and factual bases of the order are apparent from the findings of fact and conclusions of law. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000).
The record contains substantial evidence to support the ALJ's factual findings regarding the cause of the claimant's shoulder problems. Dr. McCranie testified that the claimant was inconsistent in reporting his shoulder symptoms, and that "inconsistent reporting" is one of the factors that enters into the determination of causation. Deposition of Kathy McCranie, M.D. at 15 (June 19, 2006) (hereinafter McCranie Depo.). She also testified that the findings from the MRI the claimant underwent included degenerative changes, congenital findings, and a "partial thickness tear in the labrum," which she "suspect[ed]" would be symptomatic when it occurred. McCranie Depo. at 18-19. Further, Dr. Alijani testified that the claimant gave an initial history in which he stated that he injured his right elbow and leg, but that he did not report that he had injured his shoulder. Deposition of A. Todd Alijani, M.D. at 5, 7 (June 15, 2006) (hereinafter Alijani Depo.). The doctor further testified that he performed surgery on the claimant's elbow and examined him a number of times after that, and on no occasion did the claimant complain of shoulder problems. Alijani Depo. at 9-12. He stated that in his experience patients with similar problems complain "right away" or at least within a week and that he would have expected the claimant to report a shoulder injury sooner had it been caused by the compensable accident. Alijani Depo. at 16, 18. Dr. Alijani also testified that the "classic mechanism" causing a labral tear is repetitive overhead activity. Alijani Depo. at 22. And, referring to the tear, the doctor opined that there was not "any way to state within a reasonable degree of medical probability what actually caused this." Alijani Depo. at 23. Finally, the doctor opined that it was "less likely" that the claimant's shoulder problems were caused by his compensable accident. Alijani Depo. at 33.
Despite the existence in the record of evidence from which the ALJ could have reached a contrary result, the record contains ample evidence supporting his inferences regarding the cause of the claimant's shoulder problems. Accordingly, we may not disturb the order in this regard.
II.
The claimant also argues that the ALJ erred in denying temporary total disability benefits after September 14, 2005. As noted previously, the ALJ found that the claimant was responsible for the termination from his employment and therefore he concluded that the respondents were not liable for temporary total disability benefits after the date of the claimant's discharge. The claimant argues, first, that the ALJ erred in finding that he was at "fault" for the termination from employment and, second, that temporary total disability benefits could not be denied because he was never offered modified work. We are unpersuaded that the ALJ erred and therefore affirm the order in this respect.
Sections 8-42-105(4), C.R.S. 2006, and 8-42-103(1)(g), C.R.S. 2006 (the termination statutes), contain identical language stating that in cases "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 held that the term "responsible" reintroduced into the Workers' Compensation Act the concept of "fault" applicable prior to the decision in PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995). Hence the concept of "fault" as it is used in the unemployment insurance context is instructive for purposes of the termination statutes. In that context "fault" requires that the claimant must have performed some volitional act or exercised a degree of control over the circumstances resulting in the termination. Padilla v. Digital Equipment Corp., 902 P.2d 414 (Colo.App. 1995) opinion after remand 908 P.2d 1185 (Colo.App. 1985). That determination must be based upon an examination of the totality of circumstances. Id.
The question whether the claimant acted volitionally or exercised a degree of control over the circumstances of the termination is ordinarily one of fact for the ALJ. Knepfler v. Kenton Manor, W.C. No. 4-557-781 (March 17, 2004). Accordingly, as with the previous factual determinations in this case, we must uphold the ALJ's findings in this regard if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2006; City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). Again, this standard of review is narrow and requires us to view the evidence in the light most favorable to the prevailing party. 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).
First, we disagree with the claimant's argument that he could not be held to be at fault for the discharge from employment. There is support in the record for the ALJ's findings that the employer's policy provided for termination from employment for any drug use, that the claimant was aware of that policy, and that he violated it through his use of marijuana as evidenced by the positive drug test. The claimant did not assert, either at the hearing or on appeal, that his use of marijuana was compelled, involuntary, or was not otherwise the product of his volitional conduct. In this case, the ALJ could reasonably infer that the claimant acted volitionally in ingesting marijuana, and exercised control over the circumstances leading to his termination from employment. Contrary to the claimant's argument, that a supervisor of the client company provided the drugs does not compel a contrary result. As the ALJ noted, the claimant was aware of the employer's policy and nothing in the record compels the conclusion that the employee of the client company had the authority to waive or otherwise alter that policy. Accordingly, we are unpersuaded to disturb the ALJ's finding that the claimant was responsible for the termination from his employment.
Further, we reject the claimant's argument that Anderson v. Longmont Toyota Inc., 102 P.3d 323 (Colo. 2004) and Grisbaum v. Industrial Claim Appeals Office, 109 P.3d 1054 (Colo.App. 2005) compel an award of temporary total disability under these circumstances. In Anderson the Supreme Court held that the termination statutes are not a permanent bar to temporary disability benefits when the worsening of a prior work-related injury causes the claimant's wage loss. It is true that in that case the claimant returned to modified light duty after having sustained a compensable back injury. After returning to work, he then resigned his position due to a dispute with the employer and began work with a subsequent employer under the same physical restrictions. His condition worsened, however, and more severe restrictions were imposed, which required him to resign his subsequent work. The then-current restrictions would have precluded him from performing his modified work at Longmont Toyota; however, the respondents denied temporary total disability benefits on the grounds that the termination from employment was a permanent bar to the receipt of benefits.
The supreme court rejected the employer's position, holding that "section 8-42-105(4) bars TTD wage loss claims when the voluntary or for-cause termination of the modified employment causes the wage loss, but not when the worsening of a prior work-related injury incurred during that employment causes the wage loss." Anderson, 102 P.3d at 326. In reaching this conclusion, the court relied upon the statutory authority to reopen cases for a worsened condition, noting that if the General Assembly had intended to modify the reopening provisions it would have expressly done so. The court then reiterated that the termination statutes were only intended to "weed out wage loss claims subsequent to voluntary or for-cause termination of modified employment that do not involve a worsened condition." Anderson, 102 P.3d at 330 (emphasis added).
In Grisbaum the court reiterated the holding of Anderson that a termination from employment for cause is not a permanent bar to the receipt of temporary total disability benefits. The court applied that principle where the claimant voluntarily resigned from his regular job and then became restricted from working altogether. The court held that, notwithstanding his voluntary termination, the claimant was entitled to temporary total disability benefits where his increased restrictions caused his inability to work.
Contrary to the claimant's argument, we do not read Anderson or Grisbaum as requiring that a claimant actually have returned to work before the termination statutes are triggered by a discharge from employment. Indeed, the court in Grisbaum specifically noted that it did not read Anderson as limiting the application of the termination statutes to situations involving modified employment. In our view, the termination statutes apply to the circumstances here, where the ALJ found with record support that the employer intended to accommodate the claimant's restrictions, but a termination from employment for cause intervened to result in the wage loss.
III.
Finally, we note that the claimant has filed a reply brief along with a motion for leave to file it, which was opposed by the respondents. It does not appear that the claimant's motion was ruled upon prior to the Office of Administrative Court's transmission of the appeal to our office. However, we have authority to adjudicate the motion. See § 8-43-301(9), C.R.S. 2006 (panel has authority to issue procedural orders, including those concerning "filing of briefs"). Having considered the claimant's motion and the respondents' objection, we deny the motion for leave to file a reply brief. Accordingly, we have not considered the reply brief accompanying the motion.
IT IS THEREFORE ORDERED that the ALJ=s order dated September 1, 2006, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Curt Kriksciun
Curt Kriksciun Randy L. Gilmore, 5045 W. 10th Ave., Denver, CO 802043
SOS Staffing Services, Inc., Margaret Stocking, 2650 So. Decker Lake Blvd., Suite 500, Salt Lake City, UT 84119-2059
Insurance Co. of the State of PA, c/o ESIS, Nancy Beall, P.O. Box 911, Portland, OR 97207
Cristiano Law, LLC, Francis V. Cristiano, Esq., 8101 E. Prentice Ave., #800, Greenwood Village, CO 80111 (For Claimant)
Clifton, Mueller Bovarnick, P.C., Richard A. Bovarnick, Esq., 789 Sherman Street, Suite 500, Denver, CO 80203 (For Respondents)