Opinion
W.C. No. 4-492-753.
May 11, 2004.
FINAL ORDER
The respondent seeks review of an order of Administrative Law Judge Jones (ALJ) which awarded the claimant temporary total disability (TTD) benefits. The respondent contends the ALJ's finding that the claimant "retired" from his job disqualifies him from receiving TTD benefits under § 8-42-103(1)(g), C.R.S. 2003, and § 8-42-105(4), C.R.S. 2003, the termination statutes. We affirm.
The claimant, a 64 year old man, was a baggage handler who planned to retire "no earlier than 65 years and four months" in order to receive full retirement benefits. However, in 2002 the claimant sustained wrist injuries which precluded him from performing his duties, and the respondent did not provide light duty.
In December 2002, when the employer was experiencing financial distress, the claimant spoke to a "supervisor in charge of injured workers." The claimant advised the supervisor that he felt uncomfortable remaining employed when he could do no work, and the supervisor replied that "he did not understand whey the claimant remained" employed by the respondent.
The claimant then "retired" from the employer. The ALJ found the claimant did not believe he had any alternative and he would not have retired but for the industrial injuries.
Under these circumstances the ALJ concluded the claimant was not responsible for the termination from employment, and his retirement did not constitute a volitional act because it was "related to the injury."
Relying on Longmont Toyota Inc., v. Industrial Claim Appeals Office, 85 P.3d 548 (Colo.App. 2003), cert. granted (03SC4550, March 8, 2004), the respondent contends the ALJ erred as a matter of law in concluding the claimant's retirement did not constitute a "volitional act" barring TTD benefits under the termination statutes. We disagree.
In White-Skunk v. QK, Inc., W.C. No. 4-500-149 (October 3, 2002), we considered whether a claimant was "responsible" for quitting employment when restrictions caused by the industrial injury prevented her from performing the duties of the employment. The respondent argued the claimant was responsible for the separation because she "voluntarily quit" and violated the employer's "no show no call policy." We rejected these arguments, and the following language from the White-Skunk decision is pertinent here.
The termination statutes provide that if 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 the term responsible" appears to introduce 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.App. 1995). Under this standard, the" fault" determination depends on whether the claimant performed 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); Pace v. Commercial Design Engineering, W.C. No. 4-451-277 (May 15, 2001).
In Bonney v. Pueblo Youth Service Bureau, W.C. No. 4-485-720 (April 24, 2002), we considered the applicability of the termination statutes in a case where the ALJ found the injury prevented the claimant from returning to her usual job, and caused the claimant to leave work and sustain a wage loss. In that case, we held as a matter of law the claimant was not "responsible" for the termination, and the termination statutes did not preclude an award of temporary disability benefits. We reasoned that, in the unemployment context, a claimant is not considered to be "at fault" for failure to comply with the employer's absence policy if the claimant is not physically able to notify the employer. Pepsi-Cola Bottling Co. v. Division of Employment and Training, 754 P.2d 1382 (Colo.App. 1988). Similarly, in Bestway Concrete v. Industrial Claim Appeals Office, 984 P.2d 680 (Colo.App. 1999), a claimant was not held to be at fault for "popping the clutch" on a truck where the injury rendered the claimant too weak to operate the clutch. More importantly, we noted that in Colorado Springs Disposal v. Industrial Claim Appeals Office, supra, the court concluded the term "responsible" should not be construed in a manner inconsistent with the "overall scheme of the Act." Accordingly, we reasoned that holding the claimant "responsible" for quitting employment which the injury prevents the claimant from performing would be inconsistent with the statutory scheme. This is true because the very purpose of temporary disability benefits is to compensate for a temporary loss of wages which occurs when the claimant is physically unable to perform the pre-injury employment. Schlage Lock v. Lahr, 870 P.2d 615 (Colo.App. 1993). In Bonney, we stated that even the most stringent definition of fault permits an award of temporary disability benefits where a physical inability to continue work is caused by the injury. See Monfort v. Husson, 725 P.2d 67 (Colo.App. 1986). Finally, we observed that if an employer wishes to avoid the payment of temporary disability benefits to a claimant who has quit work because she is no longer able to perform it, the employer may do so by offering modified employment under § 8-42-105(3), C.R.S. 2002.
Here, the ALJ has found the injury rendered the claimant unable to perform the duties of regular employment, and the employer offered no duties within the claimant's restrictions. Consequently, the findings support the conclusion the claimant's "retirement" was not the result of a volitional choice, but the unavailability of work within the restrictions caused by the injury. Thus, the uncontested findings support the order. See also, Maes v. CA One Services, Inc., W.C. No. 4-543-840 (March 3, 2004).
Further, this result is consistent with the statement in Longmont Toyota that the termination statutes create a "permanent bar to receipt of temporary disability benefits when a claimant is responsible for his or her separation from employment and the separation is for causes within the employee's control, but unrelated to the industrial injury." (Emphasis added). The italicized language represents the court's recognition that a temporarily disabled employee who terminates his employment because he is unable to do the job because of the effects of the injury is not "responsible" for the separation within the meaning of the Act.
The respondent's remaining arguments are without merit.
IT IS THEREFORE ORDERED that the ALJ's order dated January 5, 2004, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
David Cain
Kathy E. Dean
Robert Kiesnowski, Arvada, CO, United Airlines, DIA, Denver, CO, Kasey Troutman, Gallagher Bassett Services, Inc., Englewood, CO, David L. Worstell, Esq. and Robert W. Kiesnowski, Esq., Washington St., Denver, CO, (For Claimant).
Floyd M. Youngblood, Esq., Wheat Ridge, CO, (For Respondent).