Opinion
W.C. No. 4-535-100
December 13, 2002
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) which determined the claimant is barred from receiving temporary total disability benefits after March 8, 2001, pursuant to § 8-42-105(4), C.R.S. 2002. We affirm.
On the afternoon of March 4, 2002, the claimant suffered compensable injuries. As a result of the injuries the claimant was temporarily totally disabled until March 8, when he was released to return to his regular employment. When the claimant returned to work on March 8 his employment was immediately terminated in accordance with a decision that had been made on the morning of March 4. The employer decided to terminate the claimant's employment in response to an e-mail sent by the claimant to one of the employer's customers which contained a negative reference to instructions the claimant received from "the backup team" leader. The employer's witness testified the claimant admitted he deliberately referenced the team leader's instructions in the e-mail to agitate the customer and cause trouble for the team leader.
On March 11, 2002, medical restrictions were again imposed as a result of the injury. These restrictions precluded the claimant from performing the duties of his regular employment. The claimant subsequently applied for temporary disability benefits.
The ALJ found the claimant was "responsible" for the termination of the employment with the meaning of § 8-42-105(4). Therefore, the ALJ determined the claimant was barred from receiving temporary total disability benefits after March 8, 2002.
On review, the claimant contends § 8-42-105(4) is not applicable because he was not a "temporarily disabled employee" when the decision was made to terminate his employment. Rather, he contends the employer decided to terminate his employment prior to the injury. We reject this argument.
Initially, we note that the claimant's Designation of Record includes the "complete" Division of Workers' Compensation and Division of Administrative Hearings files. The record transmitted to us on appeal apparently does not include the complete Division of Workers' Compensation file and our review is limited to the evidentiary record before the ALJ. There is no evidence in the record which tends to suggest the claimant requested the ALJ to consider the entire Division of Workers' Compensation file as part of the evidentiary record for the hearing. See City of Boulder v. Dinsmore, 902 P.2d 925 (Colo.App. 1995); Rules of Procedure, Part VIII(A)(6), 7 Code Colo. Reg. 1101-3 at 22. Consequently, we have not obtained or considered the Division of Workers' Compensation file, and restricted our review to the record made at the hearing.
I.
A claim for temporary disability benefits requires proof the industrial injury caused a "disability" lasting more than three work shifts and that the claimant left work as a result of the disability. Section 8-42-103(1), C.R.S. 2002. In PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995), the court held that a claimant who sustains a work-related injury and is subsequently terminated for fault from the employment out of which the injury arose is not automatically disqualified from receiving temporary benefits. Instead, the court interpreted the causation element of § 8-42-103(1)(a), as permitting an award of temporary disability benefits for the subsequent wage loss if the "work-related injury contributed to some degree" to the wage loss.
Section 8-42-105(4), was enacted in 1999 to overrule PDM, and provides that:
"[I]n 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."
Applying the rules of statutory construction, we previously concluded that § 8-42-105(4), and the identical language in § 8-42-103(1)(g), C.R.S. 2002, is ambiguous because the term "employment" could refer to the "regular" job the claimant held at the time of the industrial injury or to modified employment which the claimant obtained subsequent to the disabling industrial injury. Grant v. Speedy G's Mexican Restaurant, W.C. No. 4-449-941 (May 17, 2001) ; McGaffey v. Assured Transportation Delivery, Inc., W.C. No. 4-434-706 (April 27, 2001); Martinez v. Colorado Springs Disposal, W.C. No. 4-437-497 (March 7, 2001). We reasoned that § 8-42-105(4) applied only to the termination of post-injury modified employment because the statute contains the term "temporarily disabled employee," and an employee cannot be temporarily disabled if he is capable of performing his regular employment. In Colorado Springs Disposal v. Industrial Claim Appeals Office, __ P.3d __(Colo.App. No. 01CA0464, March 28, 2002), the court rejected our interpretation of the statute and held that § 8-42-105(4) is applicable to the loss of modified or regular employment. Slip op. p. 6.
As indicated by the court in PDM Molding, Inc. v. Stanberg, supra, the term "disability" refers to the claimant's physical inability to perform regular employment. See Culver v. Ace Electric, 971 P.2d 641 (Colo. 1999); see also McKinley v. Bronco Billy's, 903 P.2d 1239 (Colo.App. 1995) (regular employment did not require driving, so medical restriction from driving did not preclude claimant from performing regular employment). Because Colorado Springs Disposal v. Industrial Claim Appeals Office, supra, holds that § 8-42-105(4) is applicable to the loss of regular employment, and no disability benefits are payable to a claimant who is capable of performing his regular employment, the term "temporarily disabled employee" must refer to the claimant's status at the time temporary disability benefits are sought.
Here the ALJ found, and it is undisputed, that the claimant was medically restricted from performing all of his regular employment duties commencing March 11, 2001. Thus, on March 11 the claimant fit the definition of a "temporarily disabled employee" and it is immaterial he was not "disabled" on March 4 or March 8, when the employer decided to terminate his employment.
II.
The claimant also contends the ALJ misapplied the proof required by § 8-42-105(4) to establish the claimant was at "fault" for the termination of employment. Relying on Padilla v. Equipment Corp. 902 P.2d 414 (Colo.App. 1994), the claimant argues he was not at "fault" because he did not know and could not have known that his compliance with the backup team leader's instructions could lead to the termination of his employment. We disagree.
Expressly citing Padilla v. Equipment Corp. supra, the Colorado Springs Disposal court also held that the term "responsible" introduced the limited concept of "fault"as used in termination cases before PDM. In Padilla, the Court of Appeals concluded that, at a minimum, a claimant is at fault if the claimant "performed some volitional act or otherwise exercised a degree of control over the circumstances resulting in the termination." 902 P.2d at 416. The Padilla court went on to state that the fault determination must turn on the specific facts of a given separation, and the cases concerning unemployment insurance are illustrative and instructive.
The claimant in Padilla was discharged for the falsification of a time card. The court held that because the claimant had been advised falsification of time cards was grounds for termination of employment, the claimant's termination was precipitated by the claimant's vocational action.
Relying on Padilla, we have previously concluded that the determination of whether the claimant was at "fault" under a PDM analysis required the ALJ to determine whether the claimant knew or reasonably should heave know that the offending conduct was grounds for the termination of employment. Ramirez v. Sam's Wholesale Club, W.C. No. 4-387-785 (November 3, 1999). We reasoned that the claimant cannot exercise "control" over the circumstances of the termination unless the claimant knows or should have known as a reasonable person that the performance of the prohibited conduct was grounds for the termination of the employment.
More recently, in Fuller v. Manitou Pancake Steakhouse, Inc., DD No. 81-2001 (June 12, 2001), aff'd., Fuller v. Industrial Claim Appeals Office, (Colo.App. No. 02CA1282, November 14, 2002) (not selected for publication), the Court of Appeals held that in the context of a claim for unemployment insurance, the determination of whether a claimant who was discharged for the use of profanity was at "fault" for the job separation turned on whether the employee "should have been aware" that her use of that level of profanity "was unacceptable" and would not be condoned or tolerated by the employer. Consequently, we agree with the claimant that the term "responsible" connotes a volitional action which the claimant knew or should have know would not be tolerated by the employer.
Here, it is undisputed the claimant had received a written disciplinary warning for failing to follow directions from the backup lead person. ( See Respondents' Hearing Exhibit D). The written warning stated that failure to comply could result in further "corrective action." Under these circumstances, the record supports the ALJ's finding that the claimant knew or should have know that writing an e-mail to a customer with the purpose of causing personnel problems for the backup lead person would not be condoned or tolerated by the employer. The ALJ also reasonably inferred that as a customer service representative who was used to dealing with customer complaints, the claimant could have complied with the instructions from the backup lead person without telling the customer exactly what the backup lead said. (Finding of Fact 16).
The ALJ's findings support the conclusion the claimant exercised control over the circumstances which lead to the employment termination. Consequently, the ALJ did not err in denying the claim for temporary disability benefits after March 8, 2002.
IT IS THEREFORE ORDERED that the ALJ's order dated July 31, 2002, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
_________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2002. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed December 13, 2002 to the following parties:
Fred Muchmore, 3705 Fair Dawn Dr., Colorado Springs, CO 80920
Karyn Newby, Quantum Corporation, 10125 Federal Dr., Colorado Springs, CO 80908-4508
Pacific Employers Insurance Company, c/o Lauren Jordan, ESIS, P. O. Box 2941, Greenwood Village, CO 81050-0141 William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909-4349 (For Claimant)
Karen Gail Treece, Esq., 999 18th St., #1600, Denver, CO 80202 (For Respondents)
BY: A. Hurtado