Opinion
W.C. No. 4-557-781
March 17, 2004
ORDER
The claimant seeks review of an order of Administrative Law Judge Klein (ALJ) insofar as it denied temporary total and temporary partial disability benefits based on a conclusion that the claimant was "responsible" for a termination of employment within the meaning of § 8-42-103(1)(g), C.R.S. 2003, and § 8-42-105(4), C.R.S. 2003 (collectively the termination statutes). The claimant further contends the ALJ erred in calculating the average weekly wage (AWW). We set aside the contested portions of the order and remand for entry of a new order.
The claimant sustained a compensable back injury on August 1, 2002, while employed as a nurse's assistant in training. At the time of injury the claimant worked thirty-seven and one-half hours per week at the rate of $7.00 per hour ($262.50 per week).
As a result of the injury the claimant was placed on restrictions which precluded her from performing her regular work. After a period of time the claimant applied for a job as an "activities" coordinator, and was hired for this position by the employer on approximately September 1, 2002.
The ALJ credited the claimant's testimony concerning the activities coordinator job. Specifically, the claimant testified that when she was hired the employer promised to pay $8.50 per hour for 40 hours per week ($340 per week). In reliance on this promise, the claimant purchased a new automobile. However, when the claimant received her first paycheck, she discovered the employer continued to pay $7.00 per hour. The claimant contacted her supervisor who promised to correct the problem, but after two and one-half months the problem had not been solved. Consequently, the claimant quit the employment in order to obtain a job which would allow her to pay for the new car.
The ALJ denied the claim for temporary disability benefits after the termination (October 14, 2002), because the claimant was found "responsible" for the termination within the meaning of the termination statutes. Although the ALJ stated the claimant was understandably frustrated about the "situation surrounding her pay," the ALJ found the claimant "voluntarily terminated her employment" over a pay dispute which was "an employment issue unrelated to the injury." The ALJ found the claimant could have continued her employment and "sought redress either through here [sic] employer or through the courts."
The ALJ also rejected the claimant's argument that the AWW should be calculated based on the promised earnings as an activities coordinator rather than the claimant's earnings at the time of the injury. In support of this determination the ALJ stated a preponderance of the evidence established the claimant would not have applied for or been put in the activities coordinator position but for the injury. The ALJ found there was not a "colorable argument" to support the higher AWW because no evidence was presented that the claimant would have applied for the activities position.
I.
On review the claimant contends the ALJ erred in finding her responsible for the termination because the pay dispute was "unrelated to the injury." The claimant further argues the evidence does not support the finding that there were remedies available short of resigning, and contends that fact is not relevant to the question of whether she was responsible for the termination. Because the ALJ may have misapplied the law in denying benefits, and because the findings of fact do not support the legal conclusion reached by the ALJ, we remand for entry of a new order.
The termination statutes provide 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." The word "responsible" introduces into the statute "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. 1995). Colorado Springs Disposal v. Industrial Claim Appeals Office, 58 P.3d 1061 (Colo.App. 2002). Thus, in order to be "responsible" for a termination from employment the claimant must have performed some volitional act or exercised a degree of control over the circumstances leading to the termination. This determination must be made based on an examination of the totality of the circumstances and turns on the specific facts of a given separation from employment. See Padilla v. Digital Equipment Corp., 902 P.2d 414 (Colo.App. 1994), vacated, 908 P.2d 1185 (Colo.App. 1995); Jeppsen v. Huerfano Medical Center, W.C. No. 4-440-444 (January 27, 2003).
We note, for comparative purposes, that the unemployment law and cases are of limited applicability in the pattern presented by this case because the Colorado Employment Security Act contains a specific provision which authorizes an award of unemployment benefits in cases where the claimant experiences an unfavorable change in working conditions. Section 8-73-108(4)(d), C.R.S. 2003. Thus, the Colorado unemployment cases do not require an analysis of whether the claimant was at fault or acted volitionally where the separation results from the claimant's decision to quit after an unfavorable change in working conditions.
The question of whether the claimant acted volitionally in causing the termination is ordinarily one of fact for the ALJ. Jeppsen v. Huerfano Medical Center, supra. Thus, we must uphold the ALJ's pertinent findings if supported by substantial evidence. However, we may set aside an order if it is contrary to the law or the findings do not support the legal conclusion. Section 8-43-301(8), C.R.S. 2003.
It is true that if the termination is based on the claimant's "injury or injury-producing conduct" that the claimant is not responsible for the termination within the meaning of the Act. Colorado Springs Disposal v. Industrial Claim Appeals Office, 58 P.3d at 1064. However, it does not follow that terminations based on conduct "unrelated" to the injury are necessarily the result of the claimant's volitional conduct. Indeed, in cases decided before Colorado Springs Disposal, the fault determination often concerned "reasons for termination apart from the reason for, or cause of, the injury for which compensation was sought." Id. at 1064. Thus, to the extent the ALJ's finding that the claimant is "responsible" is based on the finding that the reason for the termination is unrelated to the injury, the order is erroneous as a matter of law.
Further, the remaining findings of fact do not support the conclusion that the claimant was "responsible" for the termination. The ALJ's finding that the claimant "voluntarily" quit her employment in the sense that she initiated the separation is insufficient to establish that she acted volitionally under the totality of the circumstances. For instance, in the unemployment case of Goddard v. EG G Rocky Flats, Inc., 888 P.2d 369 (Colo.App. 1994), the court held the claimant did not act voluntarily by quitting his employment when the employer advised the claimant that his termination was imminent, but he could quit and receive incentive pay in exchange for a waiver of employment rights. The court characterized the claimant's position as a "Hobson's choice" to "be involuntarily laid off and be placed on a re-employment list, or accept a voluntary layoff, waive all re-employment rights, and receive severance pay." Id. at 371. See also, DeBias v. McCool's Custom Painting, W.C. No. 4-198-955 (October 10, 1995) (case decided before enactment of termination statutes holding that finding claimant "chose to terminate employment" after employer refused to pay workers' compensation medical bill insufficient to establish that ALJ correctly applied volitional conduct standard).
Here, the ALJ appears to have determined that the claimant acted volitionally simply because she initiated the separation by voluntarily resigning. To the extent the ALJ reached this conclusion he erred.
Moreover, the ALJ's finding that the claimant "could have continued her employment" as an activities coordinator at the lower rate while seeking redress with her employer or through the courts does not persuade us that the ALJ applied the correct standard of law. First, the ALJ's finding that the claimant could have sought redress with her employer is contrary to his factual finding that the claimant tried this strategy and it failed after two and one-half months. Where, as here, the ALJ finds the employer has made a contractual promise to pay a certain wage and has induced reliance by the claimant, we disagree with the conclusion that the claimant acted volitionally when the employer reneged on the promise and the claimant quit the job to seek work which would enable her to meet her newly acquired financial obligation. The claimant's situation here is analogous to the "Hobson's choice" discussed in Goddard.
Neither does the ALJ's finding concerning the availability of judicial relief establish that the claimant acted volitionally. The order does not explain how the claimant could afford to continue her employment and simultaneously meet her financial obligation while awaiting an indefinite period of time for a judicial proceeding and judgment.
Under these circumstances, the matter must be remanded for reconsideration of the issue of whether the claimant was responsible for the separation from employment. If the ALJ determines the claimant was not responsible for the separation, he must also consider whether the claimant was responsible for subsequent terminations from employment. This order does not authorize an additional evidentiary hearing. However, when reconsidering the issue the ALJ is not precluded from entering new findings of fact if determines they are warranted by the existing record.
II.
The claimant next contends the ALJ erred in concluding that the AWW should not be based on her earnings as an activities coordinator rather than the earning as the time of the injury. We remand for a new order on this issue.
Section 8-42-102(3), C.R.S. 2003, gives the ALJ discretion to depart from the statutorily prescribed methods of calculating the AWW if for any reason they do not produce a fair calculation. Pizza Hut v. Industrial Claim Appeals Office, 18 P.3d 867 (Colo.App. 2001). In Campbell v. IBM Corp., 867 P.2d 77 (Colo.App. 1993), the court held that an ALJ abused his discretion in refusing to increase the AWW for three different periods of disability where the evidence showed that before each period the claimant had obtained new jobs which paid progressively greater wages. Although the court recognized the discretionary nature of the ALJ's authority under § 8-42-102(3), it concluded that "it would be manifestly unjust to base the claimant's disability benefits in 1986 and 1989 on her substantially lower earnings in 1979."
Nothing in the Campbell decision indicates that in order for a claimant to have a "colorable argument" to increase the AWW it is necessary for the claimant to have applied for the higher paying job before the injury, or prove that she intended to apply for the job. Indeed, it seems unlikely the claimant in Campbell could have seen ten years into the future and predicted that she would have moved from the job of "chemical processor" to "architectural engineer."
Here, the ALJ based the decision not to use § 8-42-102(3) on an improper legal standard. Consequently, there was an abuse of discretion. Pizza Hut v. Industrial Claim Appeals Office, supra. Under these circumstances the matter must be remanded to redetermine the AWW consistent with the views expressed herein. In reaching this result we should not be understood as expressing any opinion on the correct or proper AWW. That
matter remains within the ALJ's discretionary authority as long as it is exercised in accordance with the applicable law.
IT IS THEREFORE ORDERED that the disputed portions of the ALJ's order dated September 5, 2003, are set aside, and the matter is remanded for entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
Copies of this order were mailed to the parties at the addresses shown below on March 17, 2004 by A. Hurtado.
Nicole Knepfler, 3203 W. 12th St. Rd., Greeley, CO 80634
Wayne Sander, Mariner Health Care, Inc. d/b/a Kenton Manor, 850 27th Ave., Greeley, CO 80631
Pacific Employers Insurance Company, c/o Julie Thorson, ESIS, Inc./ACE USA, P.O. Box 911, Portland, OR 97207
Britton Morrell, Esq., 1305 8th St., Greeley, CO 80631 (For Claimant)
Kent L. Yarbrough, Esq., P. O. Box 22833, Denver, CO 80222 (For Respondents)