Opinion
W.C. No. 4-734-912.
February 4, 2009.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Martinez (ALJ) dated September 3, 2008, that awarded temporary total disability (TTD) benefits and determined the claimant's average weekly wage (AWW) based on post-injury wages rather than income she was receiving at the time of the injury. We affirm.
The claimant suffered an admitted injury to her back on June 28, 2007. The ALJ found that the claimant had proved by a preponderance of the evidence that she was entitled to TTD benefits. For a period of disputed TTD benefits the ALJ determined that because the claimant received a raise after her work-related injury but before she resigned from work the fairest calculation of her AWW would be to use the average of her post-injury wages. The ALJ found that the claimant did not engage in volitional conduct leading to the termination of her employment; instead, the claimant left work because she was not provided work within her restrictions and she was not physically able to do the work due to her work injuries.
I.
The respondents first contend that the ALJ erred in determining that the claimant was owed TTD benefits from June 29, 2007 to July 10, 2007. The respondents argue that this determination is not supported by substantial evidence because the claimant's wage records show she was working for the employer during the disputed period. We are not persuaded.
As noted by both the parties, an employee is eligible for TTD benefits if: (1) the injury or occupational disease causes disability; (2) the injured employee leaves work as a result of the injury; and (3) the temporary disability is total and lasts more than three regular working days. Sections 8-42-103(1)(a), (b), 8-42-105(1), C.R.S. 2008; Anderson v. Longmont Toyota, Inc. 102 P.3d 323 (Colo. 2004). The term "disability" as it is used in workers' compensation connotes two distinct elements. The first element is "medical incapacity" evidenced by loss or restriction of bodily function. The second element is loss of wage-earning capacity as demonstrated by the claimant's inability "to resume his or her prior work." Culver v. Ace Electric, 971 P.2d 641 (Colo. 1999). Disability may be evidenced by the complete inability to work, or by restrictions which impair the claimant's ability effectively and properly to perform her regular employment. Ortiz v. Charles J. Murphy Co., 964 P.2d 595 (Colo.App. 1998); Ricks v. Industrial Claim Appeals Office, 809 P.2d 1118 (Colo.App. 1991).
Here, the ALJ made the following pertinent findings of fact with record support. After the accident, the employer referred the claimant for medical treatment with medical providers at the hospital where the claimant worked. Tr. at 21-22. The claimant saw a doctor at the employer the day following the accident. Tr. 21. This doctor released the claimant to modified work on June 29, 2007 for a period of seven days. Exhibit 1 at 1-2. The claimant testified that when she presented the employer with the note from the doctor she was told to stay home for a week and she did. Tr. at 22. The claimant testified she missed a week from work. Tr. at 22.
The respondents concede that the claimant had a medical incapacity as evidenced by the restrictions from her physician. However, the respondents argue that this medical incapacity did not cause any loss of earnings because the claimant worked more hours per week and earned more per week than she did prior to her injury. The respondents refer to employer reports for the period from the date of injury, June 28, 2007 to March 14, 2008, the day the claimant's employment was terminated. Exhibit K. We note that the respondents rely on compilations of records comparing pre-injury with post-injury wages and these records show considerable variance in the weekly amounts earned by the claimant both pre-injury and post-injury. The claimant directs our attention to other wage records from the employer that demonstrate the claimant missed a period of five shifts commencing two days after the injury. Exhibit L. We note that, contrary to her testimony, the records the claimant refers to appear to show that she worked on June 30, 2007 and on July 1, 2007. Exhibit L. However, the exhibits also appear to show that the claimant missed the next five days, a fact that can be viewed as supporting her claim. Exhibit L.
Here, the ALJ found the claimant's testimony was credible and for one week, shortly after her accident the claimant was prevented from doing her regular work at the employer. Because the issue of whether the claimant missed time from work is factual in nature, we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2008. This standard of review requires us to consider the evidence in a light most favorable to the prevailing party, and defer to the ALJ's credibility determinations, resolution of conflicts in the evidence, and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003). We may not substitute our judgment for that of the ALJ regarding credibility matters unless there is such hard, certain evidence contradicting the ALJ's determination that it would be error as a matter of law. See Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986).
Here, it is true that the wage records might have been relied upon to deny the period of TTD in question. However, they do not compel that result. The existence of evidence which, if credited, might support a determination contrary to that reached by the ALJ does not afford us grounds to grant appellate relief. Colorado Fuel and Iron Corp. v. Industrial Commission, 152 Colo. 25, 380 P.2d. 28 (1963). The ALJ is not required to cite or discuss every piece of evidence before crediting evidence to the contrary. Crandall v. Watson-Wilson Transportation System, Inc., 171 Colo. 329, 467 P.2d 48 (1970). Given the testimony of the claimant, the authorized physician's note and selected portions of the wage records, we cannot say that the ALJ was compelled to deny TTD benefits for the period in question.
II.
The respondents next contend that the ALJ erred in awarding the claimant TTD benefits from March 14, 2008, the date of termination, through August 10, 2008. The claimant returned to work for another employer on August 11, 2008. The respondents argue that this award is not supported by applicable law because the claimant was responsible for her termination. We decline to disturb the ALJ's conclusion that the claimant was not responsible for the termination of her employment.
Sections 8-42-105(4), C.R.S. 2008, and 8-42-103(1)(g), C.R.S. 2008 (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 her 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).
The respondents argue that the claimant voluntarily agreed to settle her workers' compensation claim and that as part of the settlement she had to resign her employment. The claimant after receiving the proposed settlement documents handwrote a resignation form and delivered it to the employer. Therefore, the respondents contend that the claimant clearly acted volitionally by writing out a resignation and delivering it to her employer.
Here the ALJ, with record support, made the following pertinent findings of fact regarding the claimant's responsibility for her termination. When the claimant returned to work for her employer following her injury she had received from her authorized treating physician a 20-pound restriction on lifting, pushing and pulling. Exhibit 1 at 1; Tr. at 23-24. Although the employer indicated that they would follow the restrictions, the claimant was still required to push and pull more than 20 pounds. Tr. at 24. The employer transferred the claimant to a job as an activities assistant. Tr. at 24. The claimant told her employer that her work as an activities assistant caused her to exceed her physical restrictions. Tr. at 26. The employer advised the claimant to ask co-employees for help. Tr. at 26-28. However, the claimant was only 16 years old at the time and she could not persuade co-employees to help her. Tr. at 28. During the winter of 2008, the claimant's back condition worsened. Tr. at 28-29. The claimant was afraid that her job at the employer was going to make her back condition worse. Tr. at 29. The employer did not provide the claimant work within her physical restrictions and did not make the necessary accommodations to assist her fully. Tr. at 26-29. In March 2008, the respondents made an offer to settle the case. Tr. at 29. At first, the claimant thought it was a good settlement offer. Tr. at 29. Because of the offer and because the claimant did not want to risk making her back worse the claimant resigned from her position at the employer. Tr. at 29. The claimant then thought about the offer and discussed it with her mother. Tr. at 38. The claimant then decided not to accept the offer, and no settlement was finalized. Tr. at 38. The ALJ concluded that the claimant left work because she was not physically able to do the work due to her condition, which resulted from her work-related injury. The ALJ concluded that the respondents failed to show it more probably true than not that, the claimant was responsible for termination of her employment.
Contrary to the respondents' argument, we do not read the factual record as compelling the conclusion that the claimant voluntarily quit her job and was thus responsible for the job separation. Here there is record support for the ALJ's determination that the claimant's resignation was involuntary, at least in the sense that it was compelled by her physical inability to do the work. We have previously ruled that where, as here, a claimant leaves work because of an inability to perform the duties of the job, the claimant is not responsible for the subsequent job separation. For example, in Bonney v. Pueblo Youth Service Bureau, W.C. No. 4-485-720 (April 24, 2002), an ALJ found an industrial injury physically prevented a claimant from returning to her usual job, and as a result the claimant left the employment. In that case, we held that the claimant was not "responsible" for quitting employment that the injury prevented the claimant from performing. See also Windom v. Lawrence Construction Co., W.C. No. 4-487-966 (November 1, 2002).
The factual record is certainly susceptible to the drawing of varying inferences regarding the circumstances of the claimant's job separation. However, the record contains substantial evidence in support of the ALJ's finding that the claimant's resignation was not voluntary within the meaning of the statutes. Therefore, we must affirm. See Bodensieck v. Indus. Claim Appeals Office, 183 P.3d 684, 688 (Colo.App. 2008) (affirming ALJ's findings on review where, although conflicting evidence was produced, there was ample substantial evidence in support).
III.
The respondents finally contend that the ALJ's determination that the claimant's post-injury wage should be used for calculating AWW is not supported by applicable law. We disagree.
Here the ALJ, with record support, found that the claimant received a raise in mid July 2007. Ex. I at 27. The respondents concede that after her injury the claimant began to work more hours. The ALJ determined that regarding the one week the claimant missed shortly after her injury the method of calculation that would result in the fairest determination would be to use the average of her pre-injury wages. However, the ALJ determined that because the claimant received a raise after her work-related injury but before she resigned from work, the fairest calculation of her AWW for the wage loss that occurred after the claimant's resignation would be to use the average of her post-injury wages.
The respondents argue that § 8-42-102(2) C.R.S. 2008 requires that the claimant's AWW be calculated on the income she was receiving "at the time of the injury." However, the Supreme Court of Colorado recently issued Avalanche Industries, Inc. v. Clark, P.3d, (Colo No. 07SC255, December 15, 2008), in which the court affirmed an ALJ's exercise of discretion to calculate a claimant's AWW based on earnings at a subsequent employer.
The court held that § 8-42-102(2), as the "default provision," of the statute requires the AWW to be calculated "upon the monthly, weekly, daily, hourly, or other remuneration" received by the injured worker "at the time of the injury." However, in Avalanche, the court also held that the default provision is expressly subordinated or made subject to the discretionary exception found in § 8-42-102(3). Although the default provision is tied to the injured worker's AWW at the time of the injury, the discretionary exception is not so limited. The discretionary exception in subsection (3) provides:
Where the foregoing methods [set forth in subsection (2)] of computing the average weekly wage of the employee . . . will not fairly compute the average weekly wage, the division [of workers' compensation], in each particular case, may compute the average weekly wage in such other manner and by such method as will, in the opinion of the director [of the division of workers' compensation] based on the facts presented, fairly determine such employee's average weekly wage.
Therefore we are not persuaded by the respondents' argument that § 8-42-102(2) requires that the claimant's AWW be calculated on the income she was receiving "at the time of the injury. The respondents rely on Lyttle v. State Comp. Ins. Fund, 137 Colo. 212, 322 P.2d 1049 (1958) for requiring AWW to be tied to the time of the injury. However, the court in Avalanche specifically distinguished Lyttle as irrelevant because it did not concern the discretionary exception.
Here the ALJ specifically relied on the discretionary exception found in § 8-42-102(3). In cases applying the discretionary exception, we review the ALJ's decision for an abuse of discretion, only reversing where it "exceeded] the bounds of reason" and was unsupported by applicable law. See Coates, Reid Waldron v. Vigil, 856 P.2d 850, (Colo. 1993) (quoting Rosenberg v. Bd. Of Educ. of Sch. Dist. No. 1, 710 P.2d 1095, 1098-99 (Colo. 1985)). In this case, we hold that the ALJ did not abuse his discretion.
IT IS THEREFORE ORDERED that the ALJ's order issued September 3, 2008 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Curt Kriksciun
______________________________ Thomas Schrant
COLORADO HOSPITAL ASSOC TRUST, Attn: CARILYN DAKAN, ENGLEWOOD, CO, (Insurer).
GREG S. RUSSI, ESQ., RIFLE, CO, (For Claimant).
THOMAS POLLART MILLER LLC, Attn: DOUGLAS A. THOMAS, ESQ., GREENWOOD VILLAGE, CO, (For Respondents).