Opinion
W.C. No. 4-486-812
September 23, 2002
FINAL ORDER
The claimant and respondents seek review of an order of Administrative Law Judge Stuber (ALJ) dated July 25, 2001, and a supplemental order dated April 15, 2002. The claimant challenges the ALJ's exclusion of wages from concurrent employment when calculating the award of temporary disability benefits, and a prehearing ALJ's order denying discovery of a surveillance video. The respondents seek review of the ALJ's denial of a request to dismiss the claim based on the claimant's exercise of her Fifth Amendment privilege in responding to a discovery request. The respondents also contend the ALJ erred in awarding temporary total disability benefits because the claimant was responsible for the loss of her employment. The claimant also seeks review of a separate order issued on October 29, 2001. The claimant argues the ALJ erred in failing to award penalties because the respondents dictated medical treatment. We affirm all orders.
The claimant, a nursing assistant employed on the night shift, sustained a compensable back injury on December 26, 2000, when a patient struck her and pulled on her clothing. On December 28, 2000, a treating physician released the claimant to return to work with restrictions. On December 29, 2000, the employer offered modified work within the claimant's restrictions. However, the claimant refused to accept the offer because it was for the day shift and the claimant held concurrent employment as a babysitter during the day. Despite the claimant's initial refusal to accept the offer, the employer mailed the offer of employment to the claimant on January 4, 2000. Meanwhile, on January 2, 2001, the treating physician took the claimant completely off of work.
When the claimant was examined on December 29 she was required to provide a urine sample for a drug test. The sample was provided in accordance with the employer's policy which requires drug testing in case of an injury on the job. The claimant's test proved positive for cannabis. Consequently, the employer terminated her from employment on January 11, 2001, based on it s "zero tolerance" policy.
The claimant earned $600 per week as a nursing assistant and $138.36 per week as a babysitter. The ALJ found the industrial injury did not prevent the claimant from performing her job as a babysitter, and she continued to do so until March 8, 2001, when the contract was terminated by the customer.
The ALJ also found the claimant sustained a compensable injury which prevented her from performing her duties as a nursing assistant, and awarded temporary partial disability benefits (without regard to income from the babysitting job), commencing December 27, 2000. In the supplemental order, the ALJ rejected the respondents' defense that the claimant is not entitled to temporary disability benefits because she was responsible for the termination of employment within the meaning of § 8-42-103(1)(g), C.R.S. 2001, and § 8-42-105(4), C.R.S. 2001 (collectively "termination statutes"). In this regard, the ALJ found, based on the claimant's refusal to answer discovery and cross-examination questions regarding drug use and the results of the drug test itself, that the claimant used drugs within 30 days of the injury and was "at fault" for the termination. However, relying on the Court of Appeals decision in Colorado Springs Disposal v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 01CA0464, March 28, 2002), cert. pending, the ALJ concluded "it would be illogical, and lead to absurd results, to read the Act as limiting the employer to a 50 percent reduction of disability benefits where the employee's misconduct is deliberate or intentional, but allowing temporary benefits to be totally denied where the employee was `responsible' for the loss of employment because he exercised some control over the circumstances leading to the injury [sic]."
I.
On review the respondents first contend the ALJ erred as a matter of law in declining to dismiss the claim based on the claimant's exercise of her Fifth Amendment privilege against self incrimination when responding to the request for discovery. We disagree.
The respondents submitted interrogatories to the claimant requesting her to list the illegal drugs she used within 30 days of the injury, and to state the dates and amounts of drug use. The claimant objected on grounds of relevancy, but a prehearing ALJ ordered the claimant to answer. The claimant then exercised her Fifth Amendment privilege and refused to answer. The respondents then moved to dismiss the claim in its entirety based on the claimant's refusal to answer. However, the ALJ declined to dismiss the claim, concluding that such a remedy was "unwarranted." Instead, the ALJ inferred from the claimant's refusal to answer the interrogatories and cross-examination questions that she had indeed used illegal drugs within thirty days of the injury, and considered that evidence in connection with the respondents' termination from employment defense. The ALJ found the respondents' rights to defend other aspects of the issues before him were not significantly affected by the question of drug usage.
Section 8-43-207(1)(e), C.R.S. 2001, provides the ALJ may "impose the sanctions provided in the rules of civil procedure in the district courts for willful failure to comply with permitted discovery." Thus, the ALJ may impose any of the various sanctions contained in C.R.C.P. 37 (b), including dismissal. Reed v. Industrial Claim Appeals Office, 13 P.3d 810 (Colo.App. 2000). Where there is a willful violation, the ALJ ordinarily has discretion in deciding which sanction is appropriate. Consequently, we may not interfere with the ALJ's decision unless an abuse is shown. Sheid v. Hewlett Packard, 826 P.2d 396 (Colo.App. 1991).
The respondents argue the only permissible sanction in this case is dismissal. They cite several authorities which hold that where a civil plaintiff refuses to provide discovery by exercising the protection of the Fifth Amendment, the claim must be dismissed. The rationale for these decisions is that the privilege against self-incrimination should not be used as a "sword," particularly where its use places the civil defendant at a disadvantage in defending against the suit. Eg. Bramble v. Kleindienst, 357 F. Supp. 1028 (D.Colo. 1973).
We are not aware of any Colorado appellate authority directly on point, and the respondents cite none. However, in cases where a civil defendant has exercised the Fifth Amendment privilege, the Court of Appeals has held it is permissible to draw an adverse inference based on the defendant's assertion of the privilege. Asplin v. Mueller, 687 P.2d 1329 (Colo.App. 1984); Chaffin, Inc. v. Wallain, 689 P.2d 684 (Colo.App. 1984).
In light of the wide array of sanctions available under C.R.C.P. 37, as well as Asplin and Mueller, we conclude the best rule is that set forth in Mertsching v. United States, 547 F. Supp. 124 (D.Colo. 1982). The court stated the following:
While the cited cases and commentaries seem conflicting, they may be reconciled to provide proper resolution of the instant cases. Where a plaintiff makes a good faith general attempt to comply with discovery but objects to only so much of the discovery request that could reasonably appear to raise Fifth Amendment problems, the more prudent course is for the trial judge to utilize the precautionary measures enunciated in Backos and Thomas, supra. However, where a plaintiff's entire discovery response is dilatory, using the Fifth Amendment as a pretext for wholesale refusal to answer questions, waiver of the privilege should be inferred.
Among the "precautionary measures" discussed in the Mertsching decision are measures to avoid surprise and permitting adverse inferences from the failure to provide discovery.
Applying these principles here, we perceive no abuse of discretion in the ALJ's refusal to dismiss the claim based on the claimant's exercise of the Fifth Amendment privilege regarding the type, amount, and dates of drug usage. First, the respondents acknowledged at the hearing that they were not asserting the claimant's injury was caused by any drug usage. (Tr. June 18, 2001, p. 38). While the claimant's drug usage might affect her entitlement to medical benefits, particularly treatment for psychological problems, the ALJ did no award any medical benefits. Hence, the respondents suffered no injury with respect to this issue. Admittedly, the drug use is relevant to the respondents' defense to temporary disability benefits under the termination statutes. However, on this issue the ALJ drew the inference desired by the respondents, namely that the claimant used drugs and violated the employer's policy. Drawing such an inference is consistent with C.R.C.P. 37 (b), which provides that one permissible sanction is that "designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order."
II.
The respondents next contend the ALJ erred in finding the claimant was not responsible for the termination of employment and in awarding temporary disability benefits. The respondents argue the claimant was not terminated for causing the injury, but for violating the employer's policy. Thus, they argue the termination statutes apply. We affirm, but for reasons different than those stated by the ALJ.
In our view Colorado Springs Disposal v. Industrial Claim Appeals Office, supra, supports the proposition that the claimant was "responsible" for the termination. In that case, the court held the term "employment" is not ambiguous in the termination statutes, and includes the employment the claimant held at the time of the injury. Moreover, the court stated the termination statutes are not restricted to termination from post-injury modified employment, as evidenced by prior case law addressing terminations from pre-injury employment. Eg. PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo.App. 1995).
However, the Colorado Springs Disposal Court also concluded the term "responsible" cannot be construed to include "an employee's injury or injury-producing activity." The court reasoned that the general no-fault character of the Act, including the abrogation of the contributory negligence defense and the provision for reduced compensation where the claimant engages in willful violation of a safety rule, argue against an interpretation of the statute which would eliminate the claimant's temporary benefits if he is responsible for causing his own injury.
We agree with the ALJ that there is some inconsistency in reducing the claimant's nonmedical benefits by 50 percent if the claimant's drug use results in the injury, and eliminating temporary disability benefits entirely if the claimant is responsible for a termination from employment because he used drugs in violation of the employer's policy. See § 8-42-112.5, C.R.S. 2001. However, as Colorado Springs Disposal states, the term responsible "as used in the termination statutes appears to introduce into the Act the limited concept of `fault' as used in the termination cases before the supreme court's decision in PDM." The court went on to state that in "those cases the `fault' inquiry focused on the reason or reasons for termination apart from the reason for, or cause of the injury for which compensation was sought." Slip. Op. at 7. In this sense, the termination statutes address the cause of the claimant's wage loss, not the cause of the injury. Hence, there is no fundamental inconsistency between the Act as a whole and denial of temporary benefits if the claimant's drug use, or violation of safety rules, causes a termination from employment as distinguished from causing the injury.
Here, the termination was not based on the claimant's conduct in causing the injury. Moreover, the ALJ found the claimant was at "fault" for the termination because he violated the employer's drug policy. Thus, we do not view Colorado Springs Disposal as supporting the ALJ's conclusion the claimant was not "responsible" for the loss of employment under the termination statutes.
However, we agree with the claimant that under the facts of this case the termination did not result in any wage loss within the meaning of the termination statutes. The termination statutes do not bar all claims for temporary disability benefits after a termination for which the claimant is responsible. Rather, they bar only those claims for wage loss "resulting" from the termination.
We have previously held that wage loss does not "result" from a termination if the injury has totally disabled the claimant such that he is not capable of performing any employment. In that situation, the wage loss stems entirely from the disability caused by the injury, not the claimant's conduct in causing the loss of prior employment. See Lovato v. Cathedral of the Sacred Heart, W.C. No. 4-463-726 (May 13, 2002); Anderson v. Longmont Toyota, Inc., W.C. No. 4-465-839 (February 13, 2002).
Here, the ALJ found that on January 2, 2001, the treating physician "rescinded" his release to modified work and took the claimant completely off work as a nursing assistant. (Finding of Fact 9, Conclusion of Law 5, July 25, 2001). It follows that when employer terminated the claimant, the resulting wage loss continued to be caused by the injury, not by the claimant's pre-injury violation of the drug policy. This is true because the claimant could not perform the pre-injury employment or any modified employment offered by the employer. Hence, we affirm the award of temporary disability benefits.
III.
The claimant contends the ALJ erred in awarding temporary partial rather than temporary total disability benefits. The claimant reasons that she lost the babysitting contract because of the industrial injury. Presumably, the claimant refers to her testimony that the contract was lost because babysitting conflicted with medical appointments and because the claimant could not drive to pick up one of the children from school. We are not persuaded.
Section 8-42-102(3), C.R.S. 2001, grants the ALJ authority to calculate the average weekly wage based on wages from concurrent employment where the industrial injury prevents the claimant from performing the concurrent employment. Jefferson County Schools v. Dragoo, 765 P.2d 636 (Colo.App. 1988); St. Mary's Church and Mission v. Industrial Commission, 735 P.2d 902 (Colo.App. 1986). We may not interfere with the ALJ's decision unless an abuse of discretion is shown, as where the order is unsupported by the evidence or contrary to law. Pizza Hut v. Industrial Claim Appeals Office, 18 P.3d 867 (Colo.App. 2001).
As the ALJ recognized, "disability" contemplates a physical incapacity which, in turn, results in loss of wage earning capacity exhibited by the claimant's inability to resume prior employment. Culver v. Ace Electric, 971 P.2d 641 (Colo. 1991); Davisson v. Rocky Mountain Safety, Inc., W.C. No. 4-283-201 (June 21, 1999). The existence of disability is a question of fact for determination by the ALJ. Lymburn v. Symbios Logic, 952 P.2d 831 (Colo.App. 1997); Davisson v. Rocky Mountain Safety, Inc. supra. Because the issue is factual, we must uphold the ALJ's determination if supported by substantial evidence. Section 8-43-301(8), C.R.S. 2001.
Here, the ALJ found the claimant continued to perform the job of babysitter for more than two months after the injury. This constitutes substantial evidence the claimant was not physically unable to perform the essential duties of this employment and, therefore, was not disabled. Although the claimant testified to some facts which might lead to a different result, the ALJ implicitly rejected those assertions. See Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (2000). It follows the ALJ did not err in refusing to consider the wages of the babysitting job in calculating temporary disability benefits. Cf. Washburn v. Academy School District No. 20, W.C. No. 4-491-308 (September 16, 2002).
IV.
The claimant next contends a prehearing judge erred in failing to order that a surveillance videotape be produced in discovery. We conclude this argument was waived.
Section 8-43-207.5(1), C.R.S. 2001, provides that a prehearing ALJ may address issues of discovery at a prehearing conference. Section 8-43-207.5(3), C.R.S. 2001, provides that the order of a prehearing ALJ is binding on the parties and "shall be interlocutory." In Industrial Claim Appeals Office v. Orth, 965 P.2d 1246, 1254 (Colo. 1998), the court held the term interlocutory means the propriety of the prehearing ALJ's order may be addressed at the full hearing before an ALJ.
Here, the claimant did not request the ALJ to review the propriety of the prehearing ALJ's discovery ruling. Consequently, the matter was waived and may not now be raised on appeal. See Kuziel v. Pet Fair, Inc., 948 P.2d 103 (Colo.App. 1997).
V.
The claimant filed a petition to review the ALJ's order dated October 29, 2001, denying penalties for an alleged violation of § 8-43-503(3), C.R.S., 2001. The claimant's petition to review contains no specific allegations of error, and the claimant did not file a timely brief in support of the petition. Consequently, the effectiveness of our review is extremely limited.
The ALJ found there was no violation of the statute because the respondents' action in requesting a drug test did not dictate the type or duration of the claimant's treatment. This finding is supported by substantial evidence in the record, and also supports denial of a penalty. See Provo v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 01CA1239, September 12, 2002). Because the order is supported by the evidence and the law, there is no basis to interfere with it. Section 8-43-301(8).
IT IS THEREFORE ORDERED that the ALJ's orders dated July 25, 2001, and April 15, 2002, are affirmed.
IT IS FURTHER ORDERED that the ALJ's order dated October 29, 2001, 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. 2001. 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 Street, Tower 3, Suite 350, Denver, CO. 80202.
Copies of this decision were mailed September 23, 2002 to the following parties:
Diane Selvage, 44 Landoe Ln., Colorado Springs, CO. 80911
Donna Ortiz, Terrace Gardens, 2438 E. Fountain Blvd., Colorado Springs, CO. 80910
American Home Assurance, c/o Rusty Pinckney, Adjuster, AIG Claim Services, P. O. Box 32130, Phoenix, AZ. 85064
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO. 80909-4349 (For Claimant)
W. Berkeley Mann, Jr., Esq., P. O. Box 22833, Denver, CO. 80222 (For Respondents)
By: A. Hurtado