In re White-Skunk, W.C. No

Full title: IN THE MATTER OF THE CLAIM OF HALLIE I. WHITE-SKUNK, Claimant, v. QK, INC…

Court: Industrial Claim Appeals Office

Date published: Oct 3, 2002

W.C. No. 4-500-149 (Colo. Ind. App. Oct. 3, 2002)

Opinion

W.C. No. 4-500-149

October 3, 2002

FINAL ORDER

The respondents seek review of an order of Administrative Law Judge Gartland (ALJ) which awarded temporary disability benefits. The respondents contend the claimant was responsible for a termination from employment and the ALJ should have denied benefits under § 8-42-103(1)(g), C.R.S. 2002, and § 8-42-105(4), C.R.S. 2002 (collectively the termination statutes). The respondents also dispute the award of medical benefits for treatment rendered before they were notified of the claim. We affirm the award of temporary disability benefits and set aside the award of medical benefits.

The claimant was employed as a cook for the employer. The ALJ found this employment caused a compensable occupational disease affecting the claimant's right shoulder and neck.

The claimant testified she quit the job on August 8, 2000, because shoulder pain prevented her from performing her duties and she needed to see a doctor. The claimant never returned to work and did not tell the employer why she left because she "didn't know how to tell them." (Tr. Pp. 16-17). The employer later completed paperwork indicating the claimant was terminated, effective August 8, for violating its no call no show policy.

The claimant reported to Dr. Begay on August 9, 2000, and was restricted from work from August 8 to August 11 with instructions to follow-up on August 11. Dr. Begay issued a release from work slip which the claimant's sister delivered to the employer. However, the slip did not indicate the cause of the release.

Thereafter, the claimant obtained other work in December 2000. This work was less demanding than the cook job. The claimant has not worked since August 10, 2001.

The claimant did not obtain further treatment from Dr. Begay, but sought treatment from Dr. Britton in October 2000. Dr. Britton referred the claimant to Dr. Bagge in January 2001. Dr. Bagge evaluated the claimant and recommended shoulder surgery in April 2001. However, the claimant's private insurer refused authorization on grounds the claimant sustained a work-related injury. Consequently, the claimant filed a claim for workers' compensation benefits on April 27, 2001.

The ALJ found, based on the evidence, that the claimant "left work on August 8, 2000, as a result of her occupational disease and has incurred a resulting wage loss." Consequently, the ALJ awarded temporary total and temporary partial disability benefits commencing August 8 and continuing until terminated by law. The ALJ further ordered the respondents to provide, without limitation, all medical treatment rendered by Dr. Begay, Dr. Britton, and Dr. Bagge.

I.

On review, the respondents contend the claimant was "responsible" for the separation from employment because she voluntarily quit work or because she was at fault for violating the employer's no show no call policy. Consequently, the respondents argue the claimant is disqualified from receiving temporary disability benefits under the termination statutes. We find no error.

The termination statutes provide that if 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, ___ P.3d ___ (Colo.App. No. 01CA0464, March 28, 2002), the court held the term responsible "appears to introduce into the Act 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.App. 1995). Under this standard, the "fault" determination depends on whether the claimant performed some volitional act or otherwise exercised a degree of control over the circumstances resulting in the termination. See Padilla v. Digital Equipment Corp., 902 P.2d 414, 416 (Colo.App. 1994, opinion after remand, 908 P.2d 1185 (Colo.App. 1995); Pace v. Commercial Design Engineering, W.C. No. 4-451-277 (May 15, 2001).

In Bonney v. Pueblo Youth Service Bureau, W.C. No. 4-485-720 (April 24, 2002), we considered the applicability of the termination statutes in a case where the ALJ found the injury prevented the claimant from returning to her usual job, and caused the claimant to leave work and sustain a wage loss. In that case, we held as a matter of law the claimant was not "responsible" for the termination, and the termination statutes did not preclude an award of temporary disability benefits. We reasoned that, in the unemployment context, a claimant is not considered to be "at fault" for failure to comply with the employer's absence policy if the claimant is not physically able to notify the employer. Pepsi-Cola Bottling Co. v. Division of Employment and Training, 754 P.2d 1382 (Colo.App. 1988). Similarly, in Bestway Concrete v. Industrial Claim Appeals Office, 984 P.2d 680 (Colo.App. 1999), a claimant was not held to be at fault for "popping the clutch" on a truck where the injury rendered the claimant too weak to operate the clutch. More importantly, we noted that in Colorado Springs Disposal v. Industrial Claim Appeals Office, supra, the court concluded the term "responsible" should not be construed in a manner inconsistent with the "overall scheme of the Act." Accordingly, we reasoned that holding the claimant "responsible" for quitting employment which the injury prevents the claimant from performing would be inconsistent with the statutory scheme. This is true because the very purpose of temporary disability benefits is to compensate for a temporary loss of wages which occurs when the claimant is physically unable to perform the pre-injury employment. Schlage Lock v. Lahr, 870 P.2d 615 (Colo.App. 1993). In Bonney, we stated that even the most stringent definition of fault permits an award of temporary disability benefits where a physical inability to continue work is caused by the injury. See Monfort v. Husson, 725 P.2d 67, 70 (Colo.App. 1986). Finally, we observed that if an employer wishes to avoid the payment of temporary disability benefits to a claimant who has quit work because she is no longer able to perform it, the employer may do so by offering modified employment under § 8-42-105(3), C.R.S. 2002.

We perceive no meaningful distinction between the facts found by the ALJ in this case and those present in Bonney v. Pueblo Youth Service Bureau, supra. Here, as in Bonney, the ALJ determined as a matter of fact that the claimant quit the pre-injury work because the occupational disease disabled her from continuing to perform her duties. (Conclusion of Law 3; Findings of Fact 3 and 17). Thus, although the ALJ did not expressly address the issue, the findings compel the legal conclusion the claimant was not responsible for the termination within the meaning of the termination statutes and is entitled to an award of temporary disability benefits until terminated in accordance with the law. We recognize the ALJ stated in Finding of Fact 1 that the claimant was terminated on August 8 "for not reporting to work." However, read in the context of the entire order and the ALJ's conclusions, we understand this to be a finding concerning the employer's view of the reason for the termination from employment, not the ALJ's finding of the actual reason for the termination. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000) (ALJ not held to standard of absolute clarity in expressing findings of fact and conclusions of law). In any event, we conclude that "termination," as contemplated by the statutes, refers to the cessation of work by the claimant, rather than the official ending of the employment relationship. This is true because we read the termination statutes as addressing the reasons for the claimant's wage loss when the claimant stops working, not the existence or absence of a formal, contractual relationship between the claimant and the employer.

We recognize that unlike Bonney, supra, the employer in this case did not have an opportunity to offer modified work pursuant to § 8-42-105(3)(d)(I) until April 27, 2001, because the claimant did not timely notify the employer of the injury. However, application of the termination statutes is an affirmative defense which is the respondents' burden to establish. See Kersting v. Industrial Commission, 39 Colo. App. 297, 567 P.2d 394 (1977). Valley Tree Service v. Jiminez, 787 P.2d 658 (Colo.App. 1990).) Here, there is no evidence that the employer had work the claimant was able to perform. Consequently, the employer failed to establish the claimant's wage loss was attributable to anything other than her disability. Moreover, the claimant's failure to give timely notice was addressed by the imposition of a penalty. The employer has not argued the penalty was inadequate under the circumstances.

This case is distinguishable from Cura v. Standard Process West, Inc., W.C. No. 4-476-826 (May 17, 2002), cited by the respondents. In Cura, the employer provided modified employment within the claimant's restrictions, and the claimant was at fault for the loss of that employment.

II.

The respondents next contend the ALJ erred in ordering payment for medical services rendered before the respondents were notified of the injury on April 27, 2001. The respondents argue the treatment was not authorized. We agree.

Initially, we note the claimant asserts this issue was not raised by the respondents. However, in our view, the claimant had the burden of proof to establish that the medical treatment was authorized as well as reasonable and necessary. Section 8-43-201, C.R.S. 2002 (claimant has burden of proof to establish entitlement to benefits); Joslins v. Dry Goods Co. v. Industrial Claim Appeals Office, 21 P.3d 866 (Colo.App. 2001) (employer did not waive causation issue where proof of causation was an intrinsic element of claimant's burden of proof).

Under § 8-43-404(5)(a), C.R.S. 2002, the insurer has the right in the first instance to designate the treating physician. This is true because the insurer, who may ultimately be liable for the bills, has a right to know what treatment is being provided. Consequently, if the claimant procures unauthorized treatment, the respondents are not liable to pay for it. Yeck v. Industrial Claim Appeals Office, 996 P.2d 228 (Colo.App. 1999).

The respondents have an obligation to designate a treating physician forthwith upon notice of the injury or the right of selection passes to the claimant. Rogers v. Industrial Claim Appeals Office, 746 P.2d 565 (Colo.App. 1987). The duty is triggered once the employer or insurer has some knowledge of facts which would lead a reasonably conscientious manager to believe the case may involve a claim for compensation. See Jones v. Adolph Coors Co., 689 P.2d 681 (Colo.App. 1984); Grove v. Denver Oxford Club, W.C. No. 4-293-338 (November 14, 1997).

Here, the ALJ found as a matter of fact that the claimant failed to notify the employer that she was "having right shoulder and arm problems as a result of the injury" until she filed the claim on April 27, 2001. Because this finding is supported by substantial, albeit conflicting, evidence, it must be upheld. Section 8-43-301(8), C.R.S. 2002. Further, this finding supports the legal conclusion that the treatment procured before April 27 was not authorized because the respondents had not been notified of facts sufficient to trigger their duty to select a physician, and the right of selection had not passed to the claimant.

We reject the claimant's assertion that the respondents acquiesced in the selection of the three physicians before April 27. The respondents could not have waived their right to select a physician until they were notified of the injury. See Johnson v. Industrial Commission, 761 P.2d 1140, 1147 (Colo. 1988) (waiver requires knowledge of the relevant facts).

IT IS THEREFORE ORDERED the ALJ's order dated March 29, 2002, is set aside insofar as it requires the respondents to pay for medical treatment prior to April 27, 2001.

IT IS FURTHER ORDERED the ALJ's order is otherwise affirmed.

INDUSTRIAL CLAIM APPEALS PANEL

________________________________ David Cain

________________________________ Dona Halsey

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 October 3, 2002 to the following parties:

Hallie I. White-Skunk, P. O. Box 323, Dolores, CO 81232

QK, Inc. d/b/a Denny's, 2059 E. Main, Cortez, CO 81321

George Fairbanks, Wausau Insurance Companies, P. O. Box 419157, Kansas City, MO 64141-6157

Robert C. Dawes, Esq., 572 E. 3rd Ave., Durango, CO 81301 (For Claimant)

Jonathan S. Robbins, Esq., 1120 Lincoln St., #1606, Denver, CO 80203 (For Respondents)

By: ________A. Hurtado____________