Opinion
W.C. No. 4-751-397 4-723-172.
November 28, 2008.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Jones (ALJ) dated November 28, 2008 that dismissed additional claims involving the admitted claim identified as W.C. No. 4-723-172, but found the claim identified as W.C. No. 4-751-397 to be compensable, awarded temporary total disability (TTD) benefits and imposed penalties on the insurer for failure to admit or deny the claim. We reverse the order insofar as it awards TTD benefits and penalties under § 8-43-203 C.R.S. 2008 for failure to admit or deny the claim. Otherwise, the order is affirmed.
The claimant has two claims against the respondents, which were combined for the purposes of hearing. The claimant injured her right ankle on May 9, 2007 in an admitted accident identified as W.C. No. 4-723-172 (ankle claim). The second claim is a disputed occupational disease claim involving bilateral carpal tunnel syndrome identified as W.C. No. 4-751-397(carpal tunnel claim). The ALJ found that medical restrictions were not imposed on the ankle claim and that the claimant's excessive tardiness and absenteeism where shown by the respondents to be a volitional act, which resulted in the claimant's termination from employment on May 18, 2007. The ALJ determined that the claimant was responsible for her wage loss. The ALJ denied the claimed TTD benefits commencing May 18, 2007, the day of her termination from the employer. However, the ALJ found the carpal tunnel claim to be compensable and that the authorized treating physicians imposed work restrictions, which were not accommodated by the employer. The ALJ determined that the claimant was never offered a position within her restrictions and therefore the claimant's wage loss commencing May 18, 2007 was not attributable to a volitional act. The ALJ concluded that the claimant was entitled to TTD benefits commencing May 18, 2007, the day of her termination, and continuing as a result of the carpal tunnel condition. The ALJ imposed penalties on the insurer in the carpal tunnel claim under § 8-43-203(2)(a) C.R.S. 2008 for failure to admit or deny the claim, commencing March 13, 2008 and continuing for a period not to exceed one year. The respondents bring this appeal.
I.
The respondents argue that the ALJ erred in awarding TTD benefits because the ALJ had found that the claimant was responsible for her termination and therefore the resulting wage loss cannot be attributable to the industrial injury pursuant to the termination statutes. The claimant argues that substantial evidence supports the award of temporary benefits and although the ALJ found that the claimant was responsible for her termination that the ALJ's order should be understood to mean that temporary benefits are not to be paid on the separate ankle claim but rather on the compensable carpal tunnel claim. We are persuaded that the ALJ erred in awarding TTD benefits after concluding that the claimant was responsible for her termination.
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. 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, we must uphold the ALJ's findings if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2008; Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). This standard of review requires us to view the evidence in the light most favorable to the prevailing party, and to accept the ALJ's resolution of conflicts in the evidence as well as plausible inferences which he drew from the evidence. Industrial Commission v. Royal Indemnity Co., 124 Colo. 210, 236 P.2d 293 (1951); Metro Moving Storage Co. v. Gussert, supra. Resolving conflicting inferences which could be drawn from the competing testimony is solely in the ALJ's discretion. Id. This standard of review is deferential and the scope of our review in this regard is "exceedingly narrow." Id. Under this standard of review it is also the ALJ's sole prerogative to evaluate the credibility of the witnesses and the probative value of the evidence. 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).
In the present case the claimant has two claims. In the ankle claim, the ALJ found that her excessive tardiness and absenteeism was a volitional act, which brought about her termination on May 18, 2007. However, the ALJ at the same time found that the treating physicians had imposed work restrictions relating to the claimant's carpal tunnel condition and therefore the claimant's wage loss commencing May 18, 2007 was not attributable to a volitional act. Accordingly, the ALJ found the claimant was entitled to TTD commencing May 18, 2007. In our view, these contradictory determinations cannot be reconciled in a way that would allow the claimant to be entitled to TTD benefits.
In enacting § 8-42-105(4) and § 8-42-103(1)(g) the legislature amended two statutes with identical language. Section 8-42-103, C.R.S. 2008 sets forth the threshold conditions that must apply before a claimant becomes entitled to temporary total disability benefits. By amending that section through the addition of § 8-42-103(1)(g) we infer that the legislature intended that threshold entitlement to temporary total disability benefits be precluded where the employee is responsible for the termination of employment. However, as noted, the legislature also added identical language to § 8-42-103, C.R.S. 2008 which deals with the termination of temporary total disability benefits rather than with threshold entitlement. By adding the identical language to § 8-42-103 and to § 8-42-105, we infer that the legislature intended that the termination from employment be a potential factor both in the threshold entitlement determination and in the termination of temporary total disability benefits once begun. Saenz v. Precious Source, Inc., W.C. No. 4-676-721 (December 06, 2006)
Here the record shows, and the ALJ found, that the claimant's voluntary conduct caused her termination. Section 8-42-103(1)(g) provides 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. Therefore in our opinion, the threshold entitlement to TTD benefits, pursuant to § 8-42-103(1)(g), is precluded because the claimant here was responsible for the termination of employment.
In our view the present case is similar to George v. T M, Inc., W.C. No. 4-609-400 (July 2, 2006), aff'd George v. Industrial Claim Appeals Office No. 06CA1627 (Colo.App. October 25, 2007) (not selected for publication). In George while the claimant was off work and receiving TTD benefits, the claimant's employment was terminated because she was suspected of stealing. The claimant argued that because she never returned to work, her wage loss necessarily resulted from her work-related injury and not from the termination of her employment. It was determined that the termination statutes applied and because the ALJ had made a factual determination that the claimant was responsible for the termination of employment the order denying the claimant's continuing TTD benefits was affirmed.
Here the ALJ determined that the claimant's carpal tunnel claim entitled her to TTD benefits because she was working at a job outside her restrictions from the carpal tunnel condition at the time she was responsible for the termination of her employment. In George v. T M, Inc. the claimant was already receiving TTD benefits until the ALJ made a factual determination that she was responsible for the termination of employment. We see no principled distinction between the facts here and those in George v. T M, Inc. Moreover, we note that the Panel has applied the termination statutes in other cases in which the claimant was terminated from employment while receiving temporary total disability benefits. See, e.g., Moreno v. Aspen Living Center, W.C. No. 4-676-020 (November 16, 2006); Wilhite v. Cargill Meat Solutions, W.C. No. 4-665-685 (November 2, 2006).
In this regard, we note that the ALJ did not specifically enter a factual finding regarding the date of the "onset of disability" of the occupational disease. The date of injury of an occupational disease is the date of the onset of disability. See Subsequent Injury Fund v. Industrial Claim Appeals Office, 899 P.2d 271 (Colo.App. 1994); SCI Manufacturing v. Industrial Claim Appeals Office, 879 P.2d 470 (Colo.App. 1994); Henderson v. RSI, Inc., 824 P.2d 91 (Colo.App. 1991). The onset of disability occurs when the occupational disease impairs the claimant's ability effectively and properly to perform his or her regular employment, or rendered the claimant incapable of returning to work except in a restricted capacity. Ricks v. Industrial Claim Appeals Office, 809 P.2d 1118 (Colo.App. 1991).
However, here it is clear from the ALJ's findings that the occupational disease rendered the claimant incapable of returning to work on May 18, 2007, which was the day on which she was terminated. Therefore, there is no reasonable reading of the ALJ's factual findings that would raise an inference that the date of the claimant's occupational disease occurred after her termination. See Anderson v. Longmont Toyota, Inc., 102 P.3d 323 (Colo. 2004) (section 8-42-105(4) bars TTD wage loss claims when the voluntary or for-cause termination of the modified employment causes the wage loss, but not when the worsening of a prior work-related injury incurred during that employment causes the wage loss).
Accordingly, because § 8-42-103(1)(g) provides that 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 ALJ erred in determining that the claimant was entitled to TTD benefits commencing on the day she was terminated for cause. We note that the claimant has not appealed the determination that she was responsible for her termination on May 18, 2007. In our opinion, the claimant cannot establish the threshold conditions that must apply before she is entitled to TTD benefits and she is precluded from receiving those benefits. Therefore, we reverse the ALJ's determination that the claimant is entitled to TTD benefits commencing the day of her termination.
II.
The respondents also contend that the ALJ erred in awarding a penalty pursuant to § 8-43-203(2)(a) C.R.S. 2008. The respondents' set forth numerous arguments on this issue. However, we need not reach those arguments because we agree with the respondents that the time period for filing an admission or denial as required by § 8-43-101 never began to run because the claimant did not miss three days of work due to her injury nor had she been determined to have permanent disability.
Penalties for failure timely to admit or deny liability, as required by § 8-43-203(2)(a) are not available unless "the claimant is successful on the claim for compensation." McManus v. Industrial Claim Appeals Office, 81 P.3d 1074 (Colo.App. 2003); Racon Construction Co., v. Industrial Claim Appeals Office, 775 P.2d 61 (Colo.App. 1989); Wright v. Rocky Mountain Health, W. C. No. 4-596-946 (March 24, 2005). A claimant is "successful" on a claim if she establishes the respondents' "liability" for compensation. Smith v. Myron Stratton Home, 676 P.2d 1196, 1201 (Colo. 1984); Racon Construction Co., v. Industrial Claim Appeals Office, 775 P.2d 61 (Colo.App. 1989). Generally, a claim is successful when the employer's liability for disability benefits is established. McManus v. Industrial Claim Appeals Office supra, See Eachus v. Cooper, 738 P.2d 383, 385 (Colo.App. 1986) (liability for TTD benefits sufficient to invoke penalty).
Here, we have determined that the ALJ erred in granting the claimant's request for TTD benefits. Therefore, because in our opinion no disability benefits were owed to the claimant the ALJ erred in granting the request for penalties under § 8-43-203(2)(a).
Additionally, the respondents assert that the obligation to admit or deny liability only arises when the employer has knowledge of an injury, which causes lost time or permanent physical impairment. The respondents argue that the employer terminated the claimant for excessive absenteeism and therefore § 8-43-101(1) did not require the employer to file a report and accordingly the 20 day period specified in § 8-43-203 never began to run. Thus the respondents argue there was no violation for which an assessment could be made pursuant to § 8-43-203(1). We also agree with this argument.
As we read the ALJ's order it appears that the ALJ assumed that there was an obligation under § 8-43-203(1)(a) to admit or deny liability based on the filing of the claim. Regarding the occupational disease claim, the ALJ found that on February 22, 2008 the claimant had filed a workers' compensation claim reflecting an injury date of May 18, 2007. The ALJ further found that neither an admission nor a notice of contest was ever filed by the respondents. Therefore, the ALJ concluded that the claimant was entitled to a penalty under § 8-43-203 from March 13, 2008 and continuing as a result of the respondents' failure to admit or deny the claim.
In her order, the ALJ made no determination of when the employer had knowledge of an injury which causes lost time or permanent physical impairment. Under the circumstances present here, it is our opinion that the findings of fact made by the ALJ do not support an award of penalties under § 8-43-203(1)(a) for failure to admit or deny liability based on the filing of the claim.
Section 8-43-203(1)(a) provides as follows:
The employer or, if insured, the employer's insurance carrier shall notify in writing the division and the injured employee or, if deceased, the decedent's dependents within twenty days after a report is, or should have been, filed with the division pursuant to section 8-43-101, whether liability is admitted or contested; except that, for the purpose of this section, any knowledge on the part of the employer, if insured, is not knowledge on the part of the insurance carrier.
Section 8-43-101 provides that:
Every employer shall keep a record of all injuries that result in fatality to, or permanent physical impairment of, or lost time from work for the injured employee in excess of three shifts or calendar days and the contraction by an employee of an occupational disease that has been listed by the director by rule. Within ten days after notice or knowledge that an employee has contracted such an occupational disease, or the occurrence of a permanently physically impairing injury, or lost-time injury to an employee, or immediately in the case of a fatality, the employer shall, upon forms prescribed by the division for that purpose, report said occupational disease, permanently physically impairing injury, lost-time injury, or fatality to the division.
When interpreting statutes the objective is to implement the legislative intent. In order to do so, we must first examine the statutory language and afford the words their plain and ordinary meanings. Weld County School District v. RE-12 v. Bymer, 955 P.2d 550 (Colo. 1998). If the meaning of the statute is unambiguous, there is no need to resort to interpretive rules of statutory construction. City of Thornton v. Replogle, 888 P. 2d 782 (Colo. 1995). Where possible, we should avoid forced, subtle, or strained construction of statutory language. Miller v. Industrial Claim Appeals Office, 985 P.2d 94 (Colo.App. 1999).
The plain and ordinary meaning of the § 8-43-203(1)(a) and § 8-43-101 read together is that the duty to admit or deny liability does not arise under the statutes unless the employer has notice that the claimant has sustained more than three days of lost time from work, permanent impairment, certain types of occupational diseases not relevant here, or death. Consequently, the respondent's obligation to admit or deny liability did not arise under this statute until it obtained knowledge which should reasonably have lead it to believe the claimant had sustained more than three days of lost time or a permanently impairing injury. Here the ALJ made no such findings of fact to support an award of penalty under § 8-43-203(1)(a) to admit or deny liability.
In our opinion the ALJ erred in concluding that the mere filing of the claim obligated the respondent to admit or deny liability under § 8-43-203(1), subjecting the respondent to the penalty provided in § 8-43-203(2). It follows that the ALJ erred in concluding the filing of the claim obligated the respondent to admit or deny liability under § 8-43-203(1), subjecting the insurer to the penalty provided in § 8-43-203(2). Consequently, the award of penalties under that statute must be reversed. Ruggio v. Cindy Lofing d/b/a City Café, W. C. No. 4-337-428 (November 29, 1999). In reaching this result we recognize the existence of Rule of Procedure 5-2, 7 Code Colo. Reg. 1101-3 that provides that the insurer shall state whether liability is admitted or contested within 20 days after the date the Division mails to the insurer a worker's Claim for Compensation. However, the claimant did not seek a penalty for violation of that rule, and the ALJ's order did not address that issue. Consequently, we have not considered whether a penalty could be appropriate under other provisions of the Workers' Compensation Act or Workers' Compensation Rules of Procedure. IT IS THEREFORE ORDERED that the ALJ's order issued November 28, 2008 is reversed insofar as it grants TTD benefits and awards penalties under § 8-43-203 for failure to admit or deny the claim. Otherwise, the order is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksciun
____________________________________ Thomas Schrant