Opinion
W.C. No. 4-280-423
February 10, 1997
ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge Wheelock (ALJ) insofar as the ALJ denied and dismissed her claim for temporary disability benefits subsequent to December 21, 1995. We set aside the contested portion of the order, and remand for further findings and entry of a new order.
The claimant suffered a compensable injury to her upper extremities while working for the Sealy Corporation (employer). As a result of the injury, the claimant was medically restricted from performing her regular employment.
The ALJ found that following the injury the claimant returned to modified duties with the employer until December 21, 1995, at which time the claimant's employment was terminated. Implicitly relying on PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995), the ALJ also determined that the claimant was at fault for the loss of the employment, because she refused to perform modified employment that was within her medical restrictions, after being directed to do so by the employer, and after being warned that her failure to do so would result in the termination of her employment.
Further, the ALJ determined that the employer would have continued to provide modified employment within the claimant's restrictions had the claimant not refused to work on December 21. Therefore, the ALJ determined that the claimant failed to prove that her industrial disability contributed "to some degree" to her wage loss after December 21, 1995. On review, the claimant contends, inter alia, that the ALJ erred in finding that she was "at fault" for the termination of her employment. We conclude that the ALJ's findings of fact are insufficient to permit appellate review of the claimant's argument. Therefore, we remand the matter to the ALJ for additional findings of fact.
The applicable law provides that where a "faultless employee is terminated while still temporarily disabled, the resulting wage loss must be attributed the injury and the employer must pay temporary disability benefits for any resulting wage loss." PDM Molding Inc. Stanberg, 885 P.2d 280, 283 (Colo.App. 1994); citing Monfort of Colorado v. Husson, 725 P.2d 67 (Colo.App. 1986), rev'd on other grounds, Allee v. Contractors, Inc., 783 P.2d 273 (Colo. 1989). However, a temporarily disabled worker who is "at fault" for the loss of the employment where the injury occurred may not recover further temporary disability benefits unless the industrial disability contributed "to some degree" to the claimant's subsequent wage loss. PDM Molding, Inc. v. Stanberg, 898 P.2d at 549.
As the ALJ explicitly recognized, the threshold issue in the PDM analysis is whether the claimant was "at fault" for the employment termination. Furthermore, the determination of whether a claimant was "at fault" is factual and turns on the specific circumstances of each case. PDM Molding Inc. v. Stanberg, supra; Padilla v. Digital Equipment Corp., 902 P.2d 414 (Colo.App. 1994).
However, the term "fault" is not necessarily related to "culpability." Rather, "fault" requires a "volitional act" by the claimant, or the claimant's exercise of some control over the circumstances which resulted in the termination, in light of the totality of the circumstances. Padilla v. Digital Equipment Corp., supra; citing Gonzales v. Industrial Commission, 740 P.2d 999 (Colo. 1987).
Where the employment termination is the result of the claimant's decision to leave the job, the ALJ's determination of "fault" may include consideration of whether the claimant had options other than leaving the employment. See DeBias v. McCool's Custom Painting, W.C. No. 4-198-955, April 23, 1996 (claimant acted volitionally in quitting employment to avoid a physical altercation with employer). We have also previously upheld an ALJ's finding that the claimant was not "at fault" for the loss of employment where the claimant's physical or mental condition precluded him from exercising control over the circumstances which resulted in the termination of his employment. Young v. General Cable Company, W.C. No. 4-214-241, September 14, 1995. We reached this conclusion because a claimant is not "at fault" for the loss of employment which exceeds his physical abilities. See Dooley v. Sutherlands, W.C. No. 4-204-460, October 6, 1995; cf. El Paso County Department of Social Services v. Donn, 865 P.2d 877 (Colo.App. 1993) (voluntary retirement did not preclude award of temporary disability benefits where condition subsequently worsened and claimant was physically unable to perform any work) . Moreover, the mental or physical condition which precludes the claimant from exercising control need not be caused by the industrial injury. See Lindner Chevrolet v. Industrial Claim Appeals Office, 914 P.2d 496 (Colo.App. 1995).
In Young v. General Cable Company, supra, the ALJ found that severe pain resulting from the claimant's industrial injury caused the claimant to be angry and engage in unpleasant verbal exchanges with his supervisor. Consequently, the ALJ found that the claimant did not act volitionally in making the remarks to his supervisor which resulted in the termination of his employment. In contrast, Lee v. Sealy Corporation, W.C. No. 4-179-535, December 6, 1994, involved a claimant who was terminated for making threatening and profane comments to his supervisor. In that case, the claimant's emotional outbursts and use of profane language were not found to be the result of any physical or mental condition. Consequently, the claimant's conduct was deemed volitional, and the claimant was determined to be "at fault" for his employment termination.
Here, the claimant does not dispute the ALJ's finding that she refused to perform modified work on December 21, 1995, and left the employer's premises. Rather, the claimant argues that her refusal was not "volitional" because she because was unable to work due to the effects of a "panic attack," which required her to leave work and seek medical treatment.
The record contains some evidence, which if credited, could support the claimant's assertion. The claimant testified that after her discussion with the employer concerning whether the modified employment she was directed to perform was consistent with the restrictions imposed by her treating physicians, she attempted to perform the modified employment but experienced a panic attack. (Tr. p. 10). She stated that during the attack she became sick to her stomach, felt "stressed out," experienced numbness in her arms, became "very upset" and cried. (Tr. p. 10). She testified she then notified the employer that she was feeling ill and was going home. However, after the employer threatened to fire her, she stated that she again attempted to perform the modified duties. As she did so, she stated that her symptoms became "really, really bad," and she was having "a real hard time breathing," so she went outside to get some air. (Tr. p. 11). While outside, she stated that she was still having trouble breathing, became "scared," started "panicking" and was unable to calm herself. (Tr. pp. 11-12). Nevertheless, she stated that she went back inside and resumed the modified duties. However, when her symptoms persisted, she said that she went back to the employer and reported that she was "having an anxiety attack." Despite the employer's statement "If you walk out that door, you are terminated," the claimant then left and sought treatment from her personal physician, Dr. Michael. (Tr. p. 13).
The ALJ explicitly rejected the claimant's testimony that she had experienced only one panic attack prior to December 21, 1995. (Finding of Fact 8). In fact, the ALJ found that the claimant has a history of depression and panic attacks with complaints of breathing problems. The ALJ also found that the claimant had been treated by Dr. Michael for panic a attack as recently as September 1995.
However, the ALJ's findings do not indicate that she rejected the claimant's testimony that she suffered a panic attack on December 21. Nor do the ALJ's findings indicate that she rejected the claimant's testimony regarding the effect of the panic attack. To the contrary, the ALJ found that the claimant advised the employer that she was leaving work as a result of a panic attack, and that the claimant was seen by Dr. Michael on December 21 for treatment of the attack. Further, the ALJ found that Dr. Michael directed the claimant to remain off work until after Christmas. (Finding of Fact 8).
Under these circumstances, the ALJ findings are insufficient to ascertain whether the ALJ found that the claimant acted "volitionally" in refusing to perform modified employment on December 21. Moreover, in view of the ALJ's finding that the claimant's employment was terminated due to her refusal to work on December 21, we agree with the claimant that her failure to contact the employer after December 21 is not material to whether she volitionally refused to work on December 21.
On remand the ALJ must redetermine whether the claimant was "at fault" for the termination of her employment on December 21, and specifically, shall make findings of fact concerning whether the claimant acted volitionally in causing the termination of her employment, in consideration of the claimant's testimony regarding the "panic attack." Upon that determination, the ALJ shall enter a new order concerning the claimant's entitlement to temporary disability benefits commencing December 21, 1995. See PDM Molding Inc. Stanberg, 885 P.2d 280, 283 (Colo.App. 1994).
In light of our remand, it is premature to consider the claimant's further contentions in support of her argument that the ALJ erroneously denied the claim for temporary disability benefits.
IT IS THEREFORE ORDERED that the ALJ's order dated May 24, 1996, is set aside insofar as the ALJ denied the claim for temporary disability benefits after December 21, 1995, and the matter is remanded to the ALJ for entry of a new order on the issue of temporary disability which is consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________________ Kathy E. Dean
_______________________________ Bill Whitacre
Copies of this decision were mailed February 10, 1997 to the following parties:
Gina M. Martinez, 2852 Preakness Way, Colorado Springs, CO 80916
Sealy Corporation, 10th Flr., Halle Bldg., 1228 Euclid Ave., Cleveland, OH 44115-1886
Sealy Corporation, 6275 Lake Shore Ct., Colo. Spgs., CO 80915
Laurie Iverson, Hartford Ins. Co., P.O. Box 22815, Denver, CO 80222
Tama L. Levine, Esq., 1290 Broadway, Ste. 708, Denver, CO 80203 (For the Respondents)
William A. Alexander, Jr., Esq., 3608 Galley Road, Colorado Springs, CO 80909 (For the Claimant)
BY: _______________________