Opinion
W.C. No. 4-475-888
April 22, 2002
FINAL ORDER
The respondents seek review of a supplemental order of Administrative Law Judge Henk (ALJ) which awarded temporary disability benefits. The respondents contend the award is contrary to § 8-42-105(4), C.R.S. 2001. We disagree and, therefore, affirm.
Section 8-42-105(4) C.R.S. 2001 [and identical language in § 8-42-103(1)(g)], provides that:
"[I]n 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."
The claimant was employed by Lawrence Construction Company (Lawrence) as a heavy laborer. In November 1999 the claimant began developing symptoms in her left shoulder and sought treatment from Dr. Seemann. Dr. Seemann diagnosed biceps tendinitis of the left shoulder and dorsal wrist tendinitis of the left wrist. On review it is undisputed the claimant's shoulder problems were caused by her employment.
On May 9, 2000, Dr. Seemann noted the claimant's pain complaints were reduced on the weekends when she was not doing physical labor and reaggravated on Monday when she returned to work. Dr. Seemann recommended the claimant "transition to another job" and wrote a prescription to Lawrence which stated the claimant:
"has an overuse syndrome to left shoulder which has not been amendable to physical therapy and will not respond to surgery. I recommend a change to a more sedentary job."
The claimant quit the employment May 9, 2000, and subsequently applied for temporary disability benefits. The respondents denied liability on grounds the claimant was "responsible" for the loss of employment on May 9.
The ALJ found Lawrence did not offer the claimant modified employment after the claimant informed Lawrence she was resigning on the advise of her physician. Relying on our conclusions in Martinez v. Colorado Springs Disposal, W.C. No. 4-437-497 (March 7, 2001) and Grant v. Speedy G's, W.C. No. 4-449-941 (May 17, 2001) the ALJ determined § 8-42-105(4) applies only where the claimant is separated from modified employment. Therefore, the ALJ determined § 8-42-105(4) did not apply to this claim.
The ALJ further determined that, in the context of § 8-42-105(4), the concept of "responsibility" is similar to the concept of "fault" discussed in PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995). The ALJ interpreted "fault" as implying a volitional act or the exercise of some control over the circumstances resulting in the loss of the employment. Because the injury rendered the claimant physically unable to perform the duties of her regular employment, the ALJ determined the respondents failed to prove the claimant was "responsible" for the loss of the employment. Consequently, the ALJ awarded temporary total disability benefits commencing May 9, 2000.
On review, the respondents contend we misapplied the law in Martinez and Grant by concluding § 8-42-103(g) and § 8-42-105(4) do not apply to the loss of regular employment. The respondents also contest the ALJ's finding the claimant was not at fault for the separation.
In Martinez v. Colorado Springs Disposal, supra, we concluded § 8-42-103(g) and § 8-42-105(4), are applicable where the claimant is determined to be responsible for the loss of post-injury modified employment. However, in Colorado Springs Disposal v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 01CA0464, March 28, 2002), petition for rehearing pending, the court disagreed and concluded that the term "employment" is broad enough to encompass the claimant's regular or pre-injury employment. Until and unless the court's decision is modified or reversed, we and the ALJ are bound by the court's holding in Colorado Springs Disposal. Therefore, the ALJ erred in holding the statutes are inapplicable to the claimant's loss of employment because she was not performing "modified employment" at the time of her resignation.
However, the Colorado Springs Disposal court stated the term "responsible," as used in § 8-42-103(g) and § 8-42105(4) "appears to introduce into the Act the limited concept of `fault' used in termination cases before the supreme court's decision in PDM." Slip Op. at 7. Prior to PDM, and after as well, the concept of "fault" was analogized to the definition of fault used in adjudicating claims for unemployment insurance benefits. Padilla v. Digital Equipment Corp., 902 P.2d 414 (Colo.App. 1994); opinion after remand, 908 P.2d 1185 (Colo.App. 1995). In Pepsi-Cola Bottling Co. v. Division of Employment and Training, 734 P.2d 1382 (Colo.App. 1988), it was held a claimant was not at fault for termination from employment where the condition of the claimant's health rendered him unable to report his absence from work as required by the employer. In these circumstances, the claimant's action was not "volitional."
In workers' compensation cases temporary disability benefits are payable if the claimant is disabled by the injury, leaves work as a result of the injury and the disability lasts more than 3 days. Section 8-42-103(1); PDM Molding, Inc. v. Stanberg, supra. Thus, if the claimant is rendered unable to perform regular duties, the claimant is entitled to benefits during the healing period, and the claimant is not held "responsible" for economic unemployment. J.D. Lunsford v. Sawatsky, 780 P.2d 76 (Colo.App. 1989).
The case of Bestway Concrete v. Industrial Claim Appeals Office, 984 P.2d 680 (Colo.App. 1999), [decided under the predecessor state], is illustrative. 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 could not work, and also credited the claimant's testimony that he "popped the clutch" because the injury rendered him too weak to operate it. The court affirmed our conclusion that the ALJ's findings amounted to a determination the claimant was not "at fault" for the loss of the employment.
Moreover, the Colorado Springs Disposal court expressly determined that the term "responsible" cannot be construed as referring to the "injury" or the "injury producing activity" because such interpretation would be inconsistent with no-fault principles of the Act. For much the same reason, a claimant cannot be responsible for the medical restrictions resulting from the injury and the consequent loss of employment which results from those restrictions. To hold a claimant "responsible" for quitting employment she can't perform would be tantamount to holding the claimant liable for the economic consequences of her reduced earning capacity.
Here, the ALJ essentially found the claimant resigned her regular employment based upon Dr. Seemann's advise that she needed a different job to avoid further aggravation to her shoulder. In other words, the ALJ determined the claimant was medically restricted from continuing her regular employment and needed to find another type of work. The ALJ's determinations are supported by the record. Consequently, the ALJ did not err in finding the respondents failed to prove the claimant engaged in "volitional conduct" which rendered her "responsible" for the loss of the employment within the meaning of § 8-42-105(4).
In reaching this conclusion, we reject the respondents' contention the claimant was "responsible" because she quit without giving the employer an "opportunity" to offer modified employment. The respondents point to no statute which requires a temporarily disabled claimant to give an employer the "opportunity" to offer modified work prior to leaving the employment. Further, in many cases the claimant has no way of knowing whether the employer is willing to employ her in a capacity other than the job for which she was hired. The employee can only tell the employer she is physically unable to continue performing her regular job and must stop working and look for available work within the restrictions. It is then up to the employer to offer modified employment that would not necessitate the claimant's separation from work. Moreover, if a claimant is temporarily disabled from performing the duties of regular employment the statute itself affords respondents the "opportunity" to avoid payment of temporary disability benefits by offering modified employment under the provisions of § 8-42-105(3)(d). This statute applies regardless of whether the claimant has "quit" or not.
Here, the respondents offered the testimony of Susan Noland (Noland), who worked in the employer's human resource department. Noland testified that Lawrence has modified employment available. (Tr. p. 78). However, there was no assertion Lawrence made the claimant an offer of modified employment when the claimant announced she could not continue her regular job.
The respondents argue no such offer was necessary because as of May 9, 2000, Lawrence believed the claimant's shoulder condition was not work-related. We are not persuaded.
The issue was whether the claimant was responsible for the separation, and the pertinent inquiry was whether the claimant exercised control over the circumstances which led to the separation. Regardless of whether the claimant's shoulder problem was "hereditary" or work-related, the fact remains the claimant resigned because the shoulder problem physically precluded her from performing her regular employment and, thus, she was not "responsible" for the separation. In any event, the record contains substantial evidence the claimant provided sufficient information to her supervisor to put a reasonable manager on notice of a potential workers' compensation claimant involving work-related injury to the upper extremity. See Jones v. Adolph Coors Co. 689 P.2d 681, 684 (Colo.App. 1984).
Finally, the respondents contend there is no evidence to support the ALJ's finding the claimant "informed Respondent-employer that she was resigning employment based on the advise of her physician." (Finding of Fact 4). We disagree.
We must uphold the ALJ's factual determinations if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2001. This standard requires us to review the evidence in a light most favorable to the prevailing party, and accept plausible inferences drawn from the record. 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).
Noland testified the claimant told her she was quitting her job because she had been to the doctor and she had a problem in her shoulder. (Tr. p. 77). Noland added the claimant told her the doctor advised her continued heavy labor would aggravate her shoulder. Consequently, the claimant implied she needed to find another job. On cross-examination Noland admitted the claimant quit based upon a doctor's opinion she should leave the job. (Tr. p. 81). Accordingly, there is substantial evidence to support the ALJ's finding the claimant informed Lawrence her resignation was based on her physician's advice.
We also note that Finding 4 is consistent with the Employer's First Report of Injury dated June 15, 2000. The Report states the, "Employee's personal doctor told her to find a new line of work, that what she is doing is causing stress to her left shoulder." The Report also indicates that by May 8, 2000, the employer was notified of the alleged repetitive stress injury to the claimant's shoulder.
Insofar as the respondents have raised additional arguments, they have been considered and do not alter our conclusions.
IT IS THEREFORE ORDERED that the ALJ's order dated January 17, 2002, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
NOTICE
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, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed April 22, 2002 to the following parties:
Anastacia Gregg, 8470 N. Sheridan Blvd., #115, Arvada, CO 80003
Lawrence Construction Company, 9002 N. Moore Rd., Littleton, CO 80125
HIH Insurance, Jan Brown, Western Guaranty Fund Services, 1720 S. Bellaire St., #408, Denver, CO 80222
Janet L. Frickey, Esq., 940 Wadsworth Blvd., 4th floor, Lakewood, CO 80215 (For Claimant)
Michael A. Perales, Esq. and Gina Gradecki, Esq., 999 18th St., #3100, Denver, CO 80202 (For Respondents)
BY: A. Hurtado