Opinion
W.C. No. 4-647-849.
October 25, 2010.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Broniak (ALJ) dated May 4, 2010, that denied the respondents' request to withdraw an admission of liability, found the claimant was not responsible for the termination of his employment and was entitled to receive temporary total disability (TTD) benefits. We affirm.
The claimant suffered an industrial injury to his back on January 27, 2004 when he moved a couch while working for the employer. At that time the employer was covered by a different insurance carrier. The present injury occurred on March 4, 2005 when the claimant bent over at the waist to pick up toilet paper he noticed lying next to a housekeeping cart. The respondents filed an admission of liability but later sought to withdraw the admission.
The ALJ denied the respondents' request to withdraw the general admission, found the claimant sustained an industrial injury on March 4, 2005 and awarded certain benefits. The ALJ also determined that the claimant was not responsible for termination of his employment and therefore not barred from receiving TTD benefits.
I.
The respondents first contend that the ALJ erred in finding that the claimant sustained a work related injury on March 4, 2005 and that his current treatment is related to that injury. The respondents further argue that there are no findings supporting the determination that the claimant's continuing need for medical treatment was the result of the March 4, 2005 incident. The respondents, citing Prouse v. Industrial Com'n 194 P. 625 (Colo. 1920) argue that the ALJ merely concluded that they were liable for authorized medical treatment, which is insufficient. The respondents contend that the ALJ's findings of fact do not demonstrate a basis upon which she could have concluded that the claimant suffered a new, compensable injury on March 4, 2005 and the order must therefore be set aside. We are not persuaded that the ALJ committed reversible error.
A claimant bears the burden of establishing by a preponderance of the evidence that his claim is compensable. Section 8-43-201, C.R.S. A claim is compensable if it is shown that the injury was proximately caused by an injury arising out of and in the course of the employee's employment. Section 8-41-301(1)(c), C.R.S. To establish that an injury arose out of an employee's employment, "the claimant must show a causal connection between the employment and injury such that the injury has its origins in the employee's work-related functions and is sufficiently related to those functions to be considered part of the employment contract." Madden v. Mountain W. Fabricators, 977 P.2d 861, 863 (Colo. 1999).
A pre-existing condition "does not disqualify a claimant from receiving workers' compensation benefits." Duncan v. Indus. Claim Appeals Office, 107 P.3d 999, 1001 (Colo. App. 2004). A claimant may be compensated if his or her employment "aggravates, accelerates, or combines with" a pre-existing infirmity or disease "to produce the disability for which workers' compensation is sought." H H Warehouse v. Vicory, 805 P.2d 1167, 1169 (Colo. App. 1990).
Because causation is a question of fact, we are bound by the ALJ's findings in this regard if they are supported by substantial evidence in the record. Cabela, 198 P.3d 1277 (Col. App. 2008); see § 8-43-301(8), C.R.S. The scope of our review is "exceedingly narrow," Metro Moving Storage Co. v. Gussert, 914 P.2d 411, 415 (Colo. App. 1995), and we must defer to the ALJ's resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record." Panera Bread, LLC v. Indus. Claim Appeals Office, 141 P.3d 970, 972 (Colo. App. 2006).
The respondents argue that all documented medical evidence indicates that any injury resulting from the March 4, 2005 incident was a temporary aggravation of a preexisting work injury that has resolved. To the extent that the respondents contend that the ALJ erred in finding the claim compensable because the March 4, 2005 incident was merely a temporary aggravation of a preexisting work injury we disagree.
Temporary aggravations of preexisting conditions are compensable. See H H Warehouse v. Vicory, 805 P.2d 1167 (Colo. App. 1990); Eisnach v. Industrial Commission, 633 P.2d 502 (Colo. App. 1981); see also Diaz v. Intertape Polymer Group. April 24, 2008, W.C. No. 4-704-673. It does not appear that the respondents even contest that the initial medical treatment the claimant received was reasonable and necessary and thus some benefits under the act were due as a consequence of the March 4, 2005 incident. In our opinion, this alone would support a determination of compensability.
Further even if we accepted the respondents' assertion that all medical evidence supported their position that the claimant's present ongoing symptoms and need for medical treatment were due to the previous January 27, 2004 admitted accident at the employer, it would not necessarily be dispositive. Causation need not be proven by medical evidence. See Lymburn v. Symbios Logic, 952 P.2d 831 (Colo. App. 1997); Apache Corp. v. Industrial Commission, 717 P.2d 1000 (Colo. App. 1986). To the contrary the claimant's testimony, if credited, may be sufficient to establish the requisite nexus between the industrial injury and the need for medical benefits. Savio House v. Dennis, 665 P.2d 141 (Colo. App. 1983).
Moreover, the respondents argue that there is substantial evidence demonstrating that the March 4, 2005 incident caused only a temporary flare in symptoms, which resolved, leaving the claimant in the same state he was prior to that incident. In support of this contention the respondents point to the following evidence in the record. The claimant testified that the increase in pain he experienced had resolved after two weeks. Tr. at 31. A medical report dated March 8, 2005 stated that the claimant had a 70 percent improvement since the incident. Exhibit K. A medical report dated October 20, 2006 indicated that the claimant first reported, nineteen months after the March 4, 2005 incident, an increase in low back pain requiring additional treatment and ultimately surgery. Exhibit Q. However, on review the issue is whether the ALJ's findings of fact are supported by substantial evidence, not whether there is substantial evidence, which, if credited, might support a contrary determination. F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo. App. 1985).
In any event there is, in our view, substantial evidence supporting the ALJ's determination that the claimant sustained an industrial injury on March 4, 2005 and that he was entitled to an award of benefits as a consequence of that injury. The ALJ made the following findings of fact with record support. On March 4, 2005 the claimant bent over at the waist to pick up toilet paper he noticed lying next to a housekeeping cart. Tr. at 29-30. While rising, his back felt like it locked and he remained slightly bent forward. Tr. 30. The claimant felt pain radiating down his left leg all the way to his heel, whereas his pain before radiated only to the top of his buttock. Tr. 30-31 39. A coworker drove him to Steamboat Medical Group. Tr. 30. Exhibit 11 at 86. Dr. Thielen evaluated the claimant on March 4, 2005. Exhibit J. Dr. Thielen took the claimant off work for three days because he could not stand or ambulate without pain and prescribed medication. Exhibit J. The claimant saw Dr. Fabian on November 2, 2006 and reported a progression of low back pain and some left leg pain along the L5-S1 distribution. Exhibit 11 at 183. On March 14, 2007 the claimant underwent a two level fusion surgery. Exhibit 11 at 135.
The ALJ determined that the claimant had established that on March 4, 2005, he bent over to pick up toilet paper which aggravated and accelerated his low back condition and produced the need for additional medical treatment. The ALJ noted that the claimant had not received treatment for his low back for approximately eight months before March 4, 2005, and he had been working without any problems. Further, a CT performed in March 2005 revealed findings, specifically annular tears, not present on the MRI taken in February 2004. The ALJ concluded that Dr. Douthit's opinions that the claimant's increased symptoms following the March 4, 2005 incident were only temporary, and that his ongoing need for treatment arose solely from the January 27, 2004 prior industrial injury were not persuasive.
The respondents argue that the ALJ's finding that immediately following the March 4, 2005 incident the claimant felt pain radiating down his left leg all the way to his heel, whereas his pain before radiated only to the top of his buttock, is without support in the record. Finding of Fact ¶ 13 at 4. However, we note that the evidence referred to by the respondents appears to deal with the right buttock and leg whereas the ALJ's finding refers to the left leg and buttock. Moreover the claimant testified that after the March 4, 2005 incident he felt pain going down his left leg that he had not had before. Tr. at 30. The claimant described the pain as being different and going all the way down. Tr. at 30. The claimant testified that most of the pain before had only radiated into his buttock. Tr. at 39.
The respondents argue that in finding that the March 4, 2005 incident aggravated and accelerated the claimant's low back condition the ALJ emphasized that the claimant had not received treatment for his low back for approximately eight months before March 4, 2005 and had been working without any problems. Finding of Fact ¶ 6 at 9. The respondents, citing two medical reports identified at Exhibits J K, contend that the reason the claimant had not received treatment prior to the March 4, 2005 incident was because he did not have health insurance and could not afford treatment, not because his symptoms had abated. The respondents also argue that at the time of the March 4, 2005 incident he had been released to full duty and the claimant's manager had testified that based on her observations the claimant's pain had not ever gone away.
The first medical report referenced by the respondents, dated March 31, 2005, indicated that the claimant had been released about 6 months earlier although the claimant continued to have mild, chronic low back pain. Exhibit J. In the second medical report referenced by the claimant there is a history that ongoing back pain following the January 27, 2004 accident, but on March 4, 2005 he had a sudden severe low back pain in his back but had a 70 percent improvement since then. We see no reference to the claimant's lack of medical insurance as the reason that the claimant had not received medical treatment prior to the March 4, 2005 incident. To the contrary the claimant testified that before the March 4, 2005 incident there was no period of time when he was refused treatment by the prior insurer on the first claim. Tr. at 28-29.
The claimant's testimony regarding his release to regular duty after the first accident is less than clear. Tr. at 23-24. He first agreed that his doctor had released him to regular duty after the March 4, 2005 incident but immediately qualified that he really did not know. Tr. at 24. The evidence, in our view, was conflicting but does not compel the conclusion that the respondents suggest.
The respondents argue that although not documented in his order the claimant testified three months before the March 4, 2005 incident the pain in his back had gone away from the January 27, 2004 accident. Tr. at 32. The respondents contrast this with medical records in which the claimant had reported that his pain had never completely gone away. The respondents argue that the ALJ failed to address this conflict between the claimant's testimony and the documentary evidence. However, here the ALJ did note reports from Dr. Thielen and Dr. Williams where the claimant reported that he had ongoing pain.
Further, we note that the ALJ is not held to a standard of absolute clarity in expressing findings of fact and conclusions of law. It is sufficient for the ALJ to enter findings concerning the evidence she considers dispositive of the issues, and evidence and inferences inconsistent with the order are presumed to have been rejected. Magnetic Engineering Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo. App. 2000). Further, the ALJ is presumed to have considered and applied the relevant legal principles. Shafer Commercial Seating, Inc. v. Industrial Claim Appeals Office, 85 P.3d 619 (Colo. App. 2003).
Here, there certainly were conflicts in the record but the ALJ found that the claimant had not received treatment for his low back for approximately eight months before March 4, 2005 and he had been working without any problems. We cannot say that the claimant's testimony was rebutted by such certain evidence that the ALJ erred as a matter of law by believing it. See Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986).
Further, the ALJ is not required to articulate the basis for her credibility determinations. Wells v. Del Norte School District C-7, 753 P.2d 770 (Colo. App. 1987). Rather, the ALJ's credibility determinations must merely be sufficient to adequately inform a reviewing authority how the ALJ resolved conflicts in the evidence. Regional Transportation District v. Jackson, 805 P.2d 1190 (Colo. App. 1991).
The respondents also note that the ALJ relied on the fact that a CT scan performed in March 2005 revealed findings, specifically annular tears, not present on the MRI taken on February 2004. Finding ¶ 6 at 9. The respondents argue that this finding is contrary to the evidence. The respondents point to the testimony of Dr. Douthit who testified that an MRI cannot be compared to a CT scan as they are different types of medical imaging tests designed to show different anatomical pathological findings.
However, we first note that the ALJ found that the opinions of Dr. Douthit were not persuasive. We further note that, as found by the ALJ, the evidence showed that a CT scan of the claimant's low back was taken on March 14, 2005 which showed L4-5 annular tears and L5-S1 posterior annular tears. Exhibit 11 at 125 130.
The respondents argue that the ALJ merely speculated that a change observed between a CT and a prior MRI and the claimant's lack of treatment and ability to work, even with restrictions, indicated that his condition after the March 4, 2005 incident was new and compensable. However, in our view, this is a reasonable inference to draw from the evidence. We simply are not persuaded by the respondents' contention that the ALJ's finding that the claimant suffered a new compensable injury on March 4, 2005 is based on insufficient evidence.
II.
The ALJ determined that the employer terminated the claimant's employment on September 26, 2006, based on allegation that the claimant engaged in favoritism involving a coworker who he later married in 2009. The respondents contend that the ALJ erred in finding that the claimant was not responsible for the termination of his employment and thereby entitled to temporary total disability benefits. We are not persuaded that the ALJ committed reversible error.
Sections 8-42-105(4), C.R.S., and 8-42-103(1)(g), C.R.S. (referred to as the termination statutes), 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. As the ALJ correctly recognized, the burden to show that the claimant was responsible for his discharge is on the respondents. Colorado Compensation Insurance Authority v. Industrial Claim Appeals Office, 18 P.3d 790 (Colo. App. 2000).
The question whether the claimant acted volitionally or exercised a degree of control over the circumstances of the termination is ordinarily one of fact for the ALJ. Knepfler v. Kenton Manor, W.C. No. 4-557-781 (March 17, 2004). Accordingly, as noted above, we must uphold the ALJ's findings if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S.; Metro Moving Storage Co. v. Gussert, supra.
A.
The respondents first contend that the ALJ utilized the wrong standard in determining whether the claimant was terminated for cause and failed to evaluate whether the claimant's conduct was volitional. The respondents argue that the ALJ applied too exacting a standard when determining whether the claimant had engaged in volitional conduct resulting in his termination. The respondents argue that the ALJ's analysis was limited to whether the claimant should have been terminated and did not address whether the claimant's actions were volitional and thus a misapplication of the law occurred. We are not persuaded that the ALJ utilized an incorrect legal standard.
The ALJ determined that the evidence supporting the claim that the claimant was responsible for his termination was not persuasive. In reaching that determination the ALJ made the following findings of fact. In September 2006 the claimant worked as Executive Housekeeper. The Assistant Executive Housekeeper found a coworker sleeping in a room and suggested to claimant that he issue a written disciplinary action. The record indicates that the employer terminated the claimant based on his decision not to issue the written disciplinary action. At the time the claimant and the coworker were personal friends. Nearly three years later, the claimant married the coworker. The claimant chose not to issue the written warning. The employer determined that the claimant's choice not to issue a written warning to the employee constituted favoritism. On September 29, 2006 the claimant was terminated for violation of company policies against any appearance of favoritism. The Employment Policies admitted into evidence did not require that a supervisor issue a written disciplinary warning when an employee engages in a prohibited act such as sleeping while on duty. The policies merely state that an employee may be subject to corrective action up to and including termination. The policy indicates that the claimant, as the supervisor, had discretion when determining whether or not to resort to a written warning. The ALJ determined that the claimant's exercise of discretion in issuing a warning did not amount to the type of volitional act required to establish responsibility for termination.
The respondents do not challenge the factual findings of the ALJ. Rather the respondents citing Bradford v. Matrix Logistics, Inc. W.C. Nol. 4-555-180 (September 4, 2003) argue that all that is required for volitional conduct is that the claimant be made aware of the employer's policy and the claimant not be prevented from complying by circumstances outside the claimant's control.
As noted in Bradford v. Matrix Logistics, Inc., the Panel relied upon Padilla v. Digital Equipment Corp and adapted the unemployment insurance definitions of "fault" and "volitional conduct" when determining "responsibility" for separation from employment under the termination statutes. In Gonzales v. Industrial Commission, 740 P.2d 999 (Colo. 1987), an unemployment insurance case determining whether the claimant was at fault for a separation based on violation of the employer's attendance policy, the court held that the violation of the employer's policy could not be automatically equated with "fault" because it would improperly cede to the employer the determination of the claimant's entitlement to unemployment benefits. Rather, the court concluded that the hearing officer was required to examine the totality of the circumstances surrounding the separation, including whether the claimant performed a volitional act or exercised some degree of control over the circumstances resulting in the discharge.
Here the ALJ found, based on the totality of the circumstances that the claimant's exercise of discretion as a manager did not constitute a volitional act that led to the termination. The ALJ found that the claimant did not exercise a sufficient degree of control over the circumstances of his termination and thus was not responsible for the termination of his employment. We are not persuaded that even if there was a violation of the employer's policy involving favoritism that this must be automatically equated with fault. In our view there is substantial evidence in the record supporting the ALJ's determination that the claimant was not shown to be responsible for his termination. Accordingly, we uphold the ALJ's determination.
B.
The respondents next contend that the ALJ failed to consider the totality of the circumstances as required in determining whether the claimant's conduct was the cause of his termination and so the order is not supported by the law. The respondents argue that the ALJ based her finding that the claimant was terminated for failing to issue a written disciplinary warning to a subordinate for sleeping on the job when the claimant had discretion in determining whether or not to resort to a written warning. However, the respondents argue that the claimant had engaged in multiple documented acts of favoritism in violation of company policy and there is no indication that these circumstances were considered by the ALJ in evaluating whether the claimant was terminated for cause.
We first note that it is the ALJ's province to determine the proximate cause of the claimant's termination from employment. See Eckart v. Industrial Claim Appeals Office, 775 P.2d 97 (Colo. App. 1989). Here the ALJ with record support found that the employer terminated the claimant's employment on September 26, 2006, based on allegation that the claimant engaged in favoritism involving a coworker who he later married in 2009. In our view, as noted above there is substantial evidence supporting this determination and therefore we are bound by it. Section 8-43-301(8), C.R.S
Further, the respondents' assertions notwithstanding, we note that the ALJ made a number of findings involving the issue of favoritism as follows. The claimant had received a written warning and suspension in July 2006 for changing work assignments that reduced the workload for one employee (not the same coworker he married) and increased the workload for other employees. The employer initially suspended the claimant pending investigation into claims of an inappropriate relationship within the work place and alleged favoritism in violation of company policies. The claimant was charged with changing the daily work assignments to reduce the workload of one employee named Mendoza (not his future wife). There was nothing in the Corrective Counseling form alleging that the claimant had altered an employee's time card. The claimant was reinstated and returned to work on July 26, 2006. On September 29, 2006, the claimant was terminated for violation of company policies against any appearance of favoritism. The assistant Executive Housekeeper found an employee under the claimant's supervision sleeping in one of the guest rooms. At the time, the claimant and the employee were personal friends. Nearly three years later, the claimant married the employee. The Assistant Executive Housekeeper recommended to the claimant that he issue a written disciplinary warning. The claimant chose not to issue the written warning. The employer determined that the claimant's choice not to issue a written warning to the employee constituted favoritism.
In our view the order makes it clear that the ALJ's determination was based upon an examination of the totality of circumstances. Padilla v. Digital Equipment Corp. Because the ALJ's determination is supported by substantial evidence it is binding on us. Section 8-43-301(8), C.R.S.
IT IS THEREFORE ORDERED that the ALJ's order date May 4, 2010 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Thomas Schrant
MARVIN MALDONADO, 3725 LINCOLN AVENUE #50, STEAMBOAT SPRINGS, CO, (Claimant).
CELEBRITY RESORT SERVICES, Attn: VERNON TREMBLAY, 4700 MILLENIA BLVD., ORLANDO, FL, (Employer)
COMMERCE INDUSTRY INSURANCE COMPANY, Attn: SARAH HUSKEY, C/O: AIG CLAIM SERVICES, INC., SHAWNEE MISSION, KS, (Insurer).
BELL POLLACK, PC, Attn: ROBERT A. BROVEGE, JR., ESQ., EAST BELLEVIEW AVENUE, GREENWOOD VILLAGE, CO, (For Claimant).
DWORKIN, CHAMBERS, WILLIAMS, YORK, BENSON EVANS, Attn: DAVID J. DWORKIN, ESQ., DENVER, CO, (For Respondents).