Opinion
W.C. No. 4-530-336.
January 26, 2004.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge (Klein) insofar as the ALJ granted the respondents' request to terminate temporary disability benefits. We affirm.
The claimant suffered compensable injuries on November 26, 2001. The claimant continued working, but she was released from work by her treating physician on January 28, 2002, and the respondents began paying temporary total disability benefits.
On March 1, 2002, the claimant was released to return to regular employment. The claimant did not return to work for the employer, and instead moved to Illinois.
The claimant's authorized treating physician in Illinois removed the claimant from work effective July 10, 2002, and the respondents reinstated temporary total disability benefits. However, the respondents subsequently petitioned to suspend temporary disability benefits based on § 8-42-105(4), C.R.S. 2003, which provides that where "a temporarily disabled employee is responsible for termination of employment, the resulting wage law shall not be attributable to the on-the-job injury."
Noting medical reports that referenced the claimant's plans to move to Illinois, the ALJ found the claimant made a "conscious voluntary decision" on or before February 25, 2002, to leave Colorado and abandon her employment. Further, the ALJ noted the claimant's testimony that she moved to Illinois because her boyfriend provided her with a place to reside there, and determined the claimant's decision to move was motivated "solely by financial considerations." Therefore, the ALJ determined the claimant was responsible for the termination of the employment and is barred from receiving additional temporary disability benefits under § 8-42-105(4).
On review the claimant contends the ALJ erred in finding she was responsible for the termination of the employment because the decision to move was motivated by financial considerations caused by the industrial injury. We perceive no basis to disturb the ALJ's order.
In Colorado Springs Disposal v. Industrial Claim Appeals Office, 58 P.3d 1061 (Colo.App. 2002), the Court of Appeals held that the term "responsible" in § 8-42-105(4) introduces the limited concept of "fault" used in termination cases before the Supreme Court's decision in PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995). In Longmont Toyota, Inc. v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 02CA0441, February 13, 2003), the court held that the termination statutes "resurrected" the law as it existed prior to PDM Molding. Citing Padilla v. Digital Equipment Corp., 902 P.2d 414 (Colo.App. 1994), the court stated the law was that "when a claimant's voluntary conduct caused his or her termination and the injury played no part in the discharge, a compensable injury was no longer recognized for purposes of temporary disability benefits."
In Padilla v. Digital Equipment Corporation, supra, the court held that the "concept of fault and its volitional nature in the unemployment insurance context is illustrative and instructive" for purposes of defining "fault" for separation from employment in workers' compensation cases. The Padilla court stated that "at a minimum, to be deemed at fault or responsible for his discharge, claimant must have performed some volitional act or otherwise exercised a degree of control over the circumstances resulting in the termination." 902 P.2d at 416.
The issue of whether the claimant acted volitionally in causing the termination of employment is generally a question of fact for determination by the ALJ. Jeppsen v. Huerfano Medical Center, W.C. No. 4-440-444(January 27, 2003). The ALJ is not required to discuss particular evidence or arguments before rejecting them as unpersuasive. Uptime Corp. v. Colorado Research Corp., 161 Colo. 87, 420 P.2d 232 (1966); Jefferson County Public Schools v. Dragoo, 765 P.2d 636 (Colo.App. 1988). Further, the ALJ is not held to a crystalline standard in articulating the basis for his order. George v. Industrial Commission, 720 P.2d 624 (Colo.App. 1986).
We must uphold the ALJ's factual determinations if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2003. Substantial evidence is that quantum of probative evidence which a rational fact-finder would accept as adequate to support a conclusion, without regard to the existence of conflicting evidence. Durocher v. Industrial Claim Appeals Office, 905 P.2d 4 (Colo.App. 1995). In applying the substantial evidence test, we may not substitute our judgment for that of the ALJ concerning the credibility of the witnesses or the sufficiency and probative weight of the evidence. Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo.App. 1993); Martinez v. Regional Transportation District, 832 P.2d 1060 (Colo.App. 1992).
Here, the claimant contends her decision to leave Colorado and hence terminate her employment was dictated by her inability to meet her financial obligations on the temporary disability benefits she was receiving. She argues that because she had no control over the benefit rate she was paid, her move was not volitional.
Initially, we note the claimant had been released to return to regular work before she left this employment on March 1. See Tr. 20-21. In any event, it is implicit in the ALJ's determination that the claimant made a voluntary decision to leave that he was not persuaded the claimant's financial circumstances deprived her of the ability to act volitionally, and we cannot say the evidence compels a contrary determination. See Cole v. Industrial Claim Appeals Office, 964 P.2d 617 (Colo.App. 1998). The ALJ's findings of fact support the conclusion the claimant was responsible for the termination of her employment, and there was thus no error in granting the request to terminate temporary disability benefits.
IT IS THEREFORE ORDERED that the ALJ's order dated September 12, 2003, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Kathy E. Dean
______________________________ Bill Whitacre
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. 2003. 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 January 26, 2004 by A. Hurtado.
Lena Smith, RR 1, Box 200, McLeansboro, IL 62859
StarTek/Preferred Technology, 1250 H St., Greeley, CO 80631
Cunningham Lindsey Claims Management, Inc., c/o Michelle Montoya, Western Guaranty Fund Services, 1720 S. Bellaire St., #408, Denver, CO 80222-4320
Shawn P. Langley, Esq., 1120 38th Ave., #1, Greeley, CO 80634 (For Claimant)
Michael W. Sutherland, Esq. and Jonathan O. Wilson, Esq., 1720 S. Bellaire St., #310, Denver, CO 80222-4316 (For Respondents)