Opinion
W.C. No. 4-608-836.
April 18, 2005.
FINAL ORDER
The respondents appeal the order of Administrative Law Judge Friend (ALJ) awarding medical benefits for the claimant's emergency hospitalizations and temporary total disability benefits from March 10, 2004 to March 12, 2004. The respondents contend that the ALJ erred in awarding medical benefits and failing to find that the claimant was responsible for her termination from employment within the meaning of the termination statutes. We affirm.
The ALJ's pertinent findings of fact are as follows. On November 20, 2003, the claimant was injured in a work-related accident when a bookcase fell and struck her on the head and arms. She received treatment in the emergency room from Dr. Hutchinson, who diagnosed a traumatic brain injury. Dr. Hutchinson released the claimant from work for three days, after which she returned to work. She received follow-up care in the form of physical therapy and medication from Gregory Denzel, D.O. and his physician's assistant, Jeremy Grover. On November 24, 2003, the claimant was restricted to four hours of work per day. The following month the claimant was admitted to the psychiatric unit of the North Colorado Medical Center under the care of her personal physician, Dr. Volk, who diagnosed "psychosis" and prescribed medications for "delusional thought processes" and anxiety. The cliamant again sought treatment at the North Colorado Medical Center's emergency room in April 2004, where she was diagnosed with an "unresponsive episode" and released with instructions to follow up with her personal physician and to obtain an EEG. The claimant was then evaluated by several other doctors, including Donald Taylor, Ph.D., a clinical neuropsychologist who performed a neuropsychological evaluation on June 27, 2004.
The ALJ further found that the claimant was temporarily disabled from performing her regular job on account of the delusional thought processes and anxiety which was causally related to the industrial injury from which she was suffering. The claimant's last day of work was March 4, 2004, following which she was on vacation from March 5th through March 9th. She was then terminated effective March 10, 2004, for poor performance. The ALJ expressly found that the claimant's inability to meet the employer's performance standards was caused by her delusional thought processes and anxiety, and that she was not at fault for the termination. She was released to perform her regular employment by Dr. Denzel and Jeremy Grover on March 12, 2004.
Based upon these findings the ALJ concluded that the insurer was liable for the fee-scheduled cost of the emergency care received by the claimant in December 2003 and April 2004. The ALJ also concluded that the claimant was not at fault for the termination of her employment and, consequently, held the insurer was liable for temporary disability benefits from March 10, 2004 to March 12, 2004.
On appeal the respondents first contest the award of temporary disability benefits. They argue that substantial evidence does not support the ALJ's finding that the claimant's poor job performance was attributable to her work-related injury. Thus, the respondents contend that the claimant's termination was the result of her volitional conduct and that she is precluded from receiving temporary disability benefits by § 8-42-105(4), and § 8-42-103(1)(g), C.R.S. 2004 (the termination statutes). We disagree.
Sections 8-42-105(4), and 8-42-103(1)(g), 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. A claimant does not act "volitionally," however, or exercise control over the circumstances leading to the termination if the effects of the injury preclude performance of her assigned duties and cause the termination. E.g., Blair v. Art C. Klein Construction, Inc., W.C. No. 4-556-576 (November 3, 2003); Bonney v. Pueblo Youth Service Bureau, W.C. No. 4-485-720 (April 24, 2002).
The question whether the claimant was terminated for fault is ordinarily one of fact for the ALJ. Padilla v. Digital Equipment Corp. supra; Knepfler v. Kenton Manor, W.C. No. 4-557-781 (March 17, 2004). Accordingly, we must uphold the ALJ's findings if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2004; City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). This standard of review requires us to view the evidence in the light most favorable to the prevailing party, and to accept the ALJ's resolution of conflicts in the evidence as well as plausible inferences which he drew from the evidence. 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).
Here there is substantial evidence supporting the ALJ's finding that the claimant's poor performance was attributable to her compensable injury. The claimant testified that as a result of the industrial injury she suffered from headaches, behavioral problems, delusional thoughts, short-term memory problems, dizziness, numbness, seizures, and anxiety, and that these problems precluded her from performing her work in a satisfactory manner. (Tr. at 19-25, 30, 40). This evidence, in conjunction with Dr. Taylor's testimony that the claimant's work-related injury aggravated her preexisting somatoform disorder and led to the development of her pseudo-seizure disorder, supports the ALJ's finding that the claimant's poor performance leading to the termination of employment resulted from her injury. Therefore, we may not disturb that finding or the conclusion that the claimant was not at fault for the termination.
The respondents also contest the award of medical benefits, arguing that the record lacks substantial evidence that the emergency treatment was for a condition that the ALJ found was related to the compensable injury. We disagree.
The respondents are liable for emergency and "authorized" medical treatment reasonably necessary to cure and relieve the effects of the industrial injury. § 8-42-101(1)(a), C.R.S. 2004; Sims v. Industrial Claim Appeals Office, 797 P.2d 777 (Colo.App. 1990). The question whether medical treatment is reasonable and necessary to cure and relieve the effects of the injury is one of fact for the ALJ. Kroupa v. Industrial Claim Appeals Office, 53 P.3d 1192 (Colo.App. 2002). As with all factual questions, we must uphold the ALJ's resolution of these issues if it is supported by substantial evidence. § 8-43-301(8), C.R.S. 2004.
We do not understand the respondents' argument to be either that the claimant's disputed medical treatment was not of an emergency nature or that it was not authorized. Rather, they argue that the record lacks evidence that the treatment was for any condition caused by the industrial injury. However, the ALJ's express finding that the claimant's hospitalizations resulted from the industrial injury is supported by substantial evidence in the record. Dr. Taylor, whose testimony the ALJ expressly credited, opined that the claimant's admissions for emergency treatment were likely for seizures that were not "physiologically-based." (Taylor Depo. at 25). Dr. Taylor also testified that the claimant's injury aggravated her preexisting somatoform disorder and that had that injury not occurred she would likely not have developed the pseudo-seizure disorder. (Taylor Depo. at 48, 50). This testimony directly supports the ALJ's finding that the need for the disputed medical treatment resulted from the industrial injury.
IT IS THEREFORE ORDERED that the ALJ's order dated November 4, 2004 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________ Kathy E. Dean
____________________ Curt Kriksciun
Karyn Kauffman, Gilcrest, CO, Edna Snyder, Noffsinger Manufacturing, Greeley, CO, Allen Hecker, Wausau Insurance, Kansas City, MO, Katherine Conahan, Esq., Cleveland, Loveland, CO, (For Claimant)
Raymond A. Melton, Esq., Denver, CO, (For Respondents)