Opinion
W.C. No. 4-493-095
October 8, 2002
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Martinez (ALJ) which denied the claim for temporary total disability benefits after July 1, 2001. The claimant argues that neither the facts nor the law justifies application of § 8-42-103(g), C.R.S. 2002, and § 8-42-105(4), C.R.S. 2002 (collectively the termination statutes). We affirm.
The claimant sustained an occupational disease of the low back arising out of and in the course of her employment as a motel housekeeping supervisor. The claimant was restricted from work by her treating chiropractor in February 2001. However, in April 2001 a treating physician released her to work with restrictions of working light duty 2 to 4 hours per day with no heavy lifting. The claimant returned to work, but quit in July 2001.
The ALJ found the claimant quit the job because she became eligible for a pension and Medicaid insurance. Further, the ALJ found that at the time the claimant quit no physician had removed her from work, and she would have continued to work but for the decision to quit. Consequently, the ALJ concluded the claimant's separation from employment was "based on a personal choice and constituted a volitional act and an exercise of control regarding her termination of employment." The ALJ held the termination statutes preclude the claimant from receiving temporary disability benefits after the termination.
On review, the claimant contends the ALJ erred as a matter of fact and law in applying the termination statutes. The claimant asserts the case is not controlled by the principle of `fault' discussed by the Court of Appeals decision in Colorado Springs Disposal v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 01CA0464, March 28, 2002), cert. pending. In any event, the claimant argues she was not at fault for the separation because she could not perform the job. We perceive no error.
We disagree with the claimant's assertion that this case is not governed, to the extent applicable, by the holding in the Colorado Springs Disposal decision. As the respondents argue, C.A.R. 35 (f) provides that "opinions selected for official publication shall be followed as precedent by the trial judges of the State of Colorado." Although, the Supreme Court has not yet acted on the petition for certiorari, the Colorado Springs Disposal decision is published and is the current state of the law concerning the scope of the termination statutes. Consequently, we consider ourselves bound to follow that case unless and until it is overruled by the Supreme Court. Indeed, we have applied the decision in several cases since it was published. Eg., Cura v. Standard Process West, Inc., W.C. No. 4-476-826 (May 17, 2002).
Further, the ALJ applied the correct standard of law in denying the claim. The termination statutes provide that in cases where 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 Cura v. Standard Process West, Inc., supra, we discussed the interaction of the termination statutes and the Colorado Springs Disposal decision as follows:
In Colorado Springs Disposal v. Industrial Claim Appeals Office [citation omitted] the court stated the term "responsible," as used in the termination statutes, "appears to introduce into the Act the limited concept of `fault' used in the termination cases before the supreme court's decision in" PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995). Thus, we have concluded the question of whether the claimant is "responsible" for the termination depends on whether the claimant performs some volitional act or otherwise exercised a degree of control over the circumstances resulting in the termination. See Padilla v. Digital Equipment Corp., 902 P.2d 414, 416 (Colo.App. 1994), opinion after remand, 908 P.2d 1185 (Colo.App. 1995); Bonney v. Pueblo Youth Service Bureau, W.C. No. 4-485-720 (April 24, 2002); Gregg v. Lawrence Construction Co., W.C. No. 4-475-888 (April 22, 2002).
It follows the ALJ applied the correct legal standard in determining whether the claimant was responsible for the termination from employment in July 2001. The claimant's argument that we should disregard the discussion of "responsibility" and "fault" in the Colorado Springs Disposal case is not persuasive.
We also note the claimant asserts that we have altered our interpretation of the fault concept since Colorado Springs Disposal was announced. However, this is an inaccurate characterization of our decisions. We have always held the concept of responsibility for termination or "fault" is governed by the volitional act standard, and did so prior to issuance of the Colorado Springs Disposal decision in March 2002. Eg., Pace v. Commercial Design Engineering, W.C. No. 4-451-277 (May 15, 2001); Turner v. Waste Management of Colorado, W.C. No. 4-463-547 (July 27, 2001).
We next consider the claimant's argument that the evidence doesn't support the finding that she was responsible for the termination of employment. In this regard, the claimant relies on her own testimony that by July 2001 she was in so much pain that she could no longer perform the modified duties provided by the employer. She also relies on certain medical evidence. We find no error.
The question of whether the claimant acted with volition in causing the termination is one of fact for determination by the ALJ. Cura v. Standard Process West, Inc., 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. 2002. This standard of review requires us to view the evidence in a light most favorable to the prevailing party and defer to the ALJ's resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). Further, the ALJ need not make findings concerning all of the evidence, but only that evidence which he finds dispositive of the issues. Contrary evidence is considered to have been rejected. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000).
We have held that if the effects of the injury prevent the claimant from performing the duties of the modified employment the claimant is not legally responsible for terminating the employment. The rationale for these decisions is that the wage loss does not "result" from the claimant's conduct but is the result of the injury itself. See Lovato v. Cathedral of Sacred Heart, W.C. No. 4-463-726 (May 13, 2002). We have also held that if the effects of the injury preclude the claimant from continuing the employment the decision to quit is not volitional, and the claimant is not "responsible" for the separation. See Bonney v. Pueblo Youth Service Bureau, W.C. No. 4-485-720 (April 24, 2002).
However, in this case the ALJ was persuaded the claimant's decision to quit was motivated by her desire to receive the state pension and Medicaid, not the effects of the injury. Although the claimant testified that, in part, her decision to quit was motivated by the inability to continue work, the ALJ implicitly rejected this testimony. The ALJ was also unpersuaded by the medical evidence which would support the claimant's position. Our review of the record reflects substantial evidence to support the ALJ's determination of the reason the claimant quit, and we may not substitute our judgment for his on this issue. Consequently, the denial of benefits must be upheld.
IT IS THEREFORE ORDERED that the ALJ's order dated April 4, 2002, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Robert M. Socolofsky
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. 2002. 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 Street, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed October 8, 2002 to the following parties:
Joyce Hughes, 670 W. Menefee, #121, Mancos, CO 81328
Ute Motel, Inc., 531 S. Broadway, Cortez, CO 81321
Michael J. Steiner, Esq., Pinnacol Assurance — Interagency Mail (For Respondents)
Robert C. Dawes, Esq., 572 E. 3rd Ave., Durango, CO 81301 (For Claimant)
Craig R. Anderson, Esq., 101 N. Tejon, #410, Colorado Springs, CO 80903
By: _____A. Hurtado______