Opinion
W.C. No. 4-545-198.
August 28, 2003.
FINAL ORDER
The claimant seeks review of an order of the Administrative Law Judge Muramoto (ALJ) which denied a claim for temporary disability benefits. The claimant contends the ALJ erred in the application of § 8-42-105(3)(d)(I), C.R.S. 2002, and § 8-42-105(4), C.R.S. 2002. We affirm.
The ALJ's findings may be summarized as follows. The claimant sustained a compensable low back injury on June 21, 2002, and was restricted from continuing his regular employment in the construction industry. By August 2, 2002, one of the treating physicians had imposed restrictions of lifting no more than 50 pounds occasionally and 25 pounds frequently. On August 6, 2002, the employer made a written offer of modified employment within these restrictions. The claimant commenced the modified duty on August 7, 2002.
The claimant failed to appear for work on August 8, 2002, or call in accordance with the employer's policy. The claimant received a verbal warning for this violation of the employer's attendance policy.
The claimant continued to experience back problems and returned to a treating physician on August 16, 2002. The claimant's restrictions were increased so that he was prohibited from lifting more than 25 pounds occasionally.
The claimant was late for work on August 26, and failed to appear for work on August 27, August 28, and August 29. The claimant or his wife notified the employer that the claimant would not be at work because of back pain, but the claimant was terminated for violation of the employer's attendance policy on August 29, 2002.
The ALJ found that the claimant was "responsible" for the termination of employment within the meaning of § 8-42-103(1)(g), C.R.S. 2002, and § 8-42-105(4) (collectively the termination statutes). The ALJ determined that, although the claimant's attendance problems "were caused by back pain," the claimant was capable of continuing to work within the medically imposed restrictions. Further, the ALJ determined that the claimant was absent for three days in August and did not return to the treating physician as he had been instructed to do. Thus, the ALJ denied the claim for temporary disability benefits.
The claimant filed a petition to review the ALJ's order. The only specific contentions contained in the petition are that the ALJ erred in the application of the termination statutes and § 8-42-105(3)(d)(I). The claimant failed to file a brief in support of the petition to review. Under these circumstances, the effectiveness of our review is limited.
The termination statutes create a "permanent bar" to the receipt of temporary disability benefits if the claimant is "responsible" for a termination of employment. Longmont Toyota, Inc. v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. 02CA0441, February 13, 2003). The term "responsible" introduces into this statute the concept of "fault" used in termination cases prior to the Supreme Court's decision in PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995). Colorado Springs Disposal v. Industrial Claim Appeals Office, 58 P.3d 1061 (Colo.App. 2002). Consequently, we have held that a claimant is "responsible" for a termination from employment if the claimant engages in "volitional conduct" or otherwise exercises "some degree of control over the circumstances resulting in the termination. Padilla v. Digital Equipment Corp., 902 P.2d 414, (Colo.App. 1994); White-Skunk v. QK, Inc., W.C. No. 4-500-149 (October 3, 2002).
We have previously held that a claimant is not responsible for a termination from employment if the termination results from injury-related impairment and the claimant's consequent inability to perform the assigned duties. Bonney v. Pueblo Youth Service Bureau, W.C. No. 4-485-720 (April 24, 2002); Pace v. Commercial Design Engineering, W.C. No. 4-451-277 (May 15, 2001). However, the fact that some absences are injury-related does not necessarily preclude a finding that a claimant was responsible for termination based on violation of the employer's attendance policy. See Wence v. Woodley's Fine Furniture Inc., W.C. No. 4-437-791 (January 30, 2001).
Here, the ALJ's finding that the claimant was able to continue working despite experiencing some pain associated with the industrial injury is fully supported by medical records and the testimony of Dr. Dickson, which the ALJ found to be persuasive. It follows that the claimant exercised some control over his absences from work, and that the absences were the result of volitional conduct rather than physical inability to return to the modified job. Because the ALJ's findings are supported by substantial evidence in the record, we must uphold the ultimate determination that the claimant is responsible for the termination. Section 8-43-301(8), C.R.S. 2002.
Neither did the ALJ err in rejecting the claimant's argument that the respondents were required to make another written offer of employment when the claimant's restrictions changed on August 16. Once the claimant accepts a written offer of modified in employment by commencing work, § 8-42-105(3)(d)(I) ceases to have any impact on the claimant's entitlement to temporary disability benefits. Rather, termination of benefits after a claimant accepts post-injury employment is governed by the applicable rule of law which, in this case, is the termination statutes. See Liberty Heights at Northgate v. Industrial Claim Appeals Office, 30 P.3d 872 (Colo.App. 2001) (this case, decided under prior law, holds that § 8-42-105(3)(d)(I) ceased to operate when the claimant commenced work after a written offer, and the claimant's right to continuing temporary disability benefits after termination from the employment was governed by principles announced in PDM Molding, Inc. v. Stanberg, supra).
IT IS THEREFORE ORDERED that the ALJ's order dated February 20, 2003, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Robert M. Socolofsky
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, Colorado 80203, by filing a Petition to Review with the Court, within twenty (20) days after the date this Order was 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 order were mailed to the parties at the addresses shown below on August 28, 2003 by A. Hurtado.
Israel Ramos, 119 University Dr., Apt. 17, Colorado Springs, CO 80910
Sprehe Interior Construction, Inc., 3888 Mallow Rd., Colorado Springs, CO 80907
Legal Department, Pinnacol Assurance — Interagency Mail
Jess M. Perez, Esq., 3155 Federal Blvd., Denver, CO 80211 (For Claimant)
Jonathan Ward, Esq., 1625 Broadway, #2300, Denver, CO 80202 (For Respondents)