Opinion
W.C. No. 4-798-629.
December 15, 2010.
FINAL ORDER
The claimant and the employer both seek review of an order of Administrative Law Judge Felter (ALJ) dated July 19, 2010, that awarded temporary total disability (TTD) benefits. We affirm the order in part and reverse in part.
The claimant suffered an industrial injury on June 17, 2009. The claimant returned to work at regular hours after the injury and the employer admitted liability as a medical claim only. However, the claimant's pain increased, Dr. Miller reinstated work restrictions, and the employer accommodated those restrictions. The claimant lost no time from work.
On August 17, 2009 the claimant was arrested on domestic violence charges while at work. The basis of the arrest was a criminal complaint made by the claimant's girlfriend. The claimant was not eligible for release on bond because at the time of his arrest he was on parole following a conviction of first-degree assault. The claimant was discharged on August 24, 2009 for job abandonment, based on the employer's "no call no show" policy after the claimant stopped reporting for work.
Within the first couple of days after incarceration the claimant attempted to call the employer but was only allowed collect calls that the employer would not accept. Ultimately the domestic abuse charges were dismissed and the claimant was released from jail two and one half months later, on November 30, 2009.
The claimant failed to appear for workers' compensation medical appointments with Dr. Bratman on September 9, 2009 and October 5, 2009. The claimant did not receive actual notice of theses appointments. The claimant did not attend any medical appointments due to his incarceration.
On October 7, 2009 the claims examiner for the employer mailed a letter to the claimant's last known address on Memphis Street and asked the claimant to notify her within thirty days if he intended to medically treat or not. She advised the claimant that if he did not respond within thirty days she would file a Final Admission of Liability (FAL). The claimant at the time of his arrest was moving out of his Memphis Street residence. The claimant was incarcerated at the time the letter was sent and failed to respond to the letter from the claim's adjuster because he had not received actual notice of appointments.
On November 10, 2009 the employer prepared a FAL based on the claimant's failure to appear at medical appointments and failure to respond to a 30-day letter pursuant to W.C. Rule of Procedure 7-1(b), 7 Code Colo. Reg. 1101-3 (2010). The FAL was mailed to the claimant's last known address with the employer on Memphis Street and it advised the claimant that if he failed to object to the FAL within 30 calendar days of FAL, his case would automatically close. As permitted by "Rule 7-1 the FAL did not set forth a date of maximum medical improvement (MMI). The respondent did not admit for medical maintenance care.
The claimant was released from jail on November 30, 3009. He still had 10 days to object to the FAL. He had never received actual notice of the FAL and was unaware that it had been filed. He did not timely object to the FAL.
The ALJ determined that the FAL dated November 10, 2009 was not valid because the claimant did not receive "actual notice" of it until after it was too late for him to object to it. The ALJ found that the respondent complied with almost all of the elements of "Rule 7-1 (B) for the "claim abandonment FAL" with the exception of providing actual notice thereof to the claimant.
The ALJ further determined that the claimant was not responsible for his termination. The ALJ concluded that the claimant had not committed a volitional act resulting in his termination because his arrest did not arise from a culpable act on his part.
The ALJ ordered the employer to retroactively pay the claimant benefits from August 17, 2009 through June 22, 2010 (the date of the hearing). The ALJ also ordered the employer to pay TTD benefits thereafter until terminated by law.
I.
The employer contends that the ALJ erred in finding that the FAL based upon rule 7-1 was invalid because the claimant did not receive actual notice of it until it was too late for him to object to it. Rule 7-1 deals with the closure of claims. It is provided in Rule 7-1(b) as follows:
A Final Admission of Liability may be filed based on abandonment of the claim if the claimant:
(1) Is not receiving temporary disability benefits; and
(2) has not attended two or more consecutive scheduled medical appointments; and
(3) has failed to respond within 30 days to a letter from the insurer or the insured asking if the claimant requires additional medical treatment or is claiming permanent impairment. The letter shall be sent to the claimant and the claimant's attorney if the claimant is represented. The letter must also advise the claimant in bold type and capital letters that failure to respond to the letter within 30 days will result in a final admission being filed. If the claimant timely responds to the letter the insurer may not file a Final Admission of Liability pursuant to this rule.
A. If a claim is abandoned and a Final Admission of Liability is filed pursuant to this rule, an MMI date should not be included.
B. A copy of the letter sent to the claimant must be attached to the final admission of liability.
C. If the claimant timely objects to a final admission of liability filed pursuant to this rule the insurer must withdraw the final admission and provide an opportunity for the claimant to attend a medical appointment(s).
The ALJ found that the employer had complied with all of the elements of Rule 7-1(B) for the filing of a claim abandonment FAL except it did not provide actual notice to the claimant. The ALJ determined that Rule 7-1(B) does not contain any provision for constructive notice by delivery to the claimant's last known address and that notice to the last known address of an employee of a private company under the Workers' Compensation Act is not sufficient. The ALJ relied on Owens v. Ready Men Labor, Inc., W.C. No. 4-178-276 (August 25, 1995), aff'd, Ready Men Labor, Inc. v. Industrial Claim Appeals Office, (Colo. App. No. 95CA1590, April 25, 1996) (not selected for publication).
In interpreting administrative regulations we are constrained by the same principles governing the interpretation of statutes. Gerrity Oil and Gas Corp. v. Magness, 923 P.2d 261 (Colo. App. 1995), aff'd in part, rev'd in part on other grounds, 946 P.2d 913 (Colo. 1997). Thus, the overall objective is to interpret the rules in a manner which affects the Director's intent. Ray v. New World Van, W. C. No. 4-520-251(October 12, 2004). Because the language used is the best indicator of intent, the rules should be given their plain and ordinary meanings unless the result is absurd. Further, the rules should be read to give a consistent, harmonious and sensible effect to all their parts. Spracklin v. Industrial Claim Appeals Office, 66 P.3d 176 (Colo. App. 2002). Here, reading the plain language of Rule 7-1, we have doubts that the Director intended the demonstration in every circumstance of actual notice by a claimant of the letter and admission described in the rule.
However, we are not persuaded that substantial compliance with the notice requirements of Rule 7-1 existed here. See Stefanski v. Industrial Claim Appeals Office 128 P.3d 282 (Colo. App. 2005); EZ Bldg Components Mfg, LLC v. Industrial Claim Appeals Office, 74 P.3d 516 (Colo. App. 2003) (concept of substantial compliance has been applied to various notice requirements in workers' compensation proceedings). The ALJ found that the employer was aware that the police took the claimant to jail and knew of his incarceration status. Given this knowledge the employer failed to notify the claimant by directing the letter and FAL regarding his abandonment of the claim to the jail where he resided. In our opinion the employer's actions did not constitute substantial compliance.
Substantial compliance with Rule 7-1 occurs only if the purposes behind the rule are met. Dorris v. Gardner Zemke Co., 765 P.2d 602 (Colo. App. 1988). The employer's actions circumvented some of the important purposes of the rule, which requires offering the claimant an opportunity to respond and prevent closure of the claim. See Public Service Co. v. Boatwright, 749 P.2d 456 (Colo. App. 1987) (the imposition of a penalty could be avoided only when there had been substantial compliance with the statute which satisfied the purposes of the notice requirements).
In our view, the notice requirements of Rule 7-1 were not substantially met by sending the abandonment letter to the claimant's home address when the employer had knowledge that the claimant was not there because of his incarceration. Therefore, the employer's provision of notice fell short of due process requirements. See Hall v. Home Furniture Co. 724 P.2d 94 (Colo. App. 1986) (statutory enactments must be interpreted to comport with due process requirements).
We additionally note that the ALJ found that the claimant's argument that the FAL was invalid because it did not contain a statement concerning MMI was misplaced. The ALJ concluded that Rule 7-1 specifically contemplated this issue and instructed respondents to not include an MMI date. The ALJ determined that § 8-43-203(2), C.R.S. which sets forth the necessary elements for a FAL, does not require a determination of MMI nor the need for a medical report. We agree with the ALJ. However, because we determine that the employer did not comply with Rule 7-1 we need not address the claimant's further contention that the rule violates the Workers' Compensation Act.
II.
The employer next contends that the ALJ erred in finding that the claimant was entitled to TTD benefits from August 17, 2009 to June 22, 2010. The employer first contends that the ALJ utilized the wrong standard in determining whether the claimant was terminated for cause. The employer argues that the ALJ misapplied the law in determining that the claimant had not engaged in any volitional conduct and erred in determining that the claimant was not responsible for his termination. We are not persuaded to interfere with the ALJ's determination that the claimant was not responsible for his termination.
Sections 8-42-105(4), C.R.S., and 8-42-103(1)(g), C.R.S. (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 his discharge was on the employer. 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.; 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).
Here, the ALJ concluded that the claimant was not responsible for his termination because he was arrested and he was unable to call his employer because the employer declined to accept a collect call from the claimant. The ALJ found that this did not constitute a volitional act resulting in his termination because his arrest did not arise from a culpable act on his part. The ALJ inferred that the employer was aware that the police took the claimant to jail on August 16, 2009. The ALJ further inferred that the employer was made aware that the claimant was unable to return to work due to his incarceration because the claimant made several telephone calls from jail seeking to reverse the charges and the employer declined to accept the charges.
The employer argues that regardless of whether it knew, or should have known of the claimant's incarceration, the claimant failed to comply with its no call/no show policy and was duly terminated. The employer contends that the claimant's inability to comply with the policy was a direct result of his volitional conduct, namely an assault leading to conviction and parole, and but for his prior conviction he would have been released from prison on bond and able to either return to work or comply with its call in policy.
However, it is the ALJ's province to determine the direct and proximate cause of a separation from employment. See Eckart v. Industrial Claim Appeals Office, 775 P.2d 97 (Colo. App. 1989). Moreover, the violation of an employer's policy does not compel the conclusion that the claimant acted volitionally in regard to his termination. Here, the ALJ determined that the claimant was not responsible for his termination because he was arrested on a charge that was subsequently dismissed and so committed no volitional act leading to his termination. In our view this is a reasonable inference drawn from the record and so is binding on us. Therefore, we affirm the ALJ's determination that the claimant was not responsible for his termination.
III.
The employer next argues that the order as it pertains to TTD benefits is not supported by the findings of fact. The employer argues that a claimant is only entitled to TTD benefits under § 8-42-103 C.R.S. if he leaves work "as a result of the injury." The employer argues that the undisputed evidence shows that the claimant did not leave work "as a result of the injury," but as a result of his non-work related incarceration. The employer argues that the evidence unequivocally shows that if the claimant had not been arrested his employment would have continued. We agree in part with the employer. In our view the ALJ erred in awarding TTD benefits for the period of time that the claimant was incarcerated.
We initially note that in our view § 8-42-113(1), which provides that an individual is not entitled to workers' compensation benefits for any week following "conviction" during which an individual is confined to jail, is not applicable to the present case. We further note that we agree with the ALJ that the claimant's reliance on § 8-42-105(3) was misplaced because that section only applies to termination of TTD benefits after the benefits start. Here, the ALJ had found that TTD benefits did not start in this case because the claimant actually returned to work after his injury.
The ALJ determined that under § 8-42-103, C.R.S. a claimant is only entitled to TTD benefits if he "leaves work as a result of the injury." However, the ALJ found that the claimant did not leave work "as a result of the injury," but due to outside factors, namely, an arrest and incarceration. The ALJ found that it was undisputed that if the claimant had not been arrested, the employer would have continued to accommodate his restrictions. The ALJ further found that the sole reason the claimant suffered a wage loss was due to his incarceration without having been convicted.
Pursuant to §§ 8-42-103 and 8-42-105, C.R.S., a claimant is entitled to an award of TTD benefits if: (1) the injury or occupational disease causes disability; (2) the injured employee leaves work as a result of the injury; and (3) the temporary disability is total and lasts more than three regular working days. Lymburn v. Symbios Logic 952 P.2d 831 (Colo. App. 1997). An essential component of the injured employee compensation design, TTD benefits exist to help offset lost wages when the employee cannot work due to the injury. Anderson v. Longmont Toyota, Inc. 102 P.3d 323 (Colo. 2004). Accordingly, the statute expressly contemplates proof the injured worker left work or lost employment as a result of the industrial injury in order to establish entitlement to temporary disability benefits. Randall v. The Anschutz Mining Corporation, W. C. No. 4-433-235 (September 14, 2000). See also City of Colorado Springs v. Industrial Claim Appeals Office, 954 P.2d 637 (Colo. App. 1997); Lunsford v. Sawatsky, 780 P.2d 76 (Colo. App. 1989) (temporary disability benefits are designed to protect the claimant against the loss of earnings caused by the industrial injury).
The present case is not similar to where a temporarily disabled employee is laid off from modified employment for economic reasons, and the subsequent wage loss remains causally connected to the industrial injury and the claimant is entitled to TTD benefits. Here, instead the ALJ found that it was undisputed that if the claimant had not been arrested, the employer would have continued to accommodate his restrictions, and the sole reason the claimant suffered a wage loss was due to his incarceration without having been convicted. Therefore, given these findings by the ALJ, which were supported by the record, the award of TTD during the period of the claimant's incarceration from August 17, 2009 through November 30, 2009 was error.
However, the ALJ was not compelled to conclude that once the claimant was released from jail that his loss of earnings was any longer causally connected to his incarceration. Rather, the ALJ made the following relevant findings of fact. The claimant was under work restrictions and was unable to return to his usual job due to the effect of his admitted injury. The claimant contacted the employer, but was not offered modified employment within his restrictions. The claimant's job had been terminated through no volitional act on the part of the claimant. Given these finding of fact we are not persuaded to interfere with the ALJ's award of TTD for the period after the claimant's incarceration. At that point the outside factor of the claimant's incarceration had been removed, and the claimant's wage loss could be and was viewed by the ALJ as resulting from the injury, which would entitle him to TTD benefits under § 8-42-103. Therefore, we affirm the ALJ's award of TTD after the claimant's incarceration.
IV.
The employer finally contends that the ALJ erred in finding that the claimant had demonstrated a change in condition. The ALJ determined, in the alternative, that the claimant would be entitled to reopen his claim based on a worsening condition in event the FAL was considered valid. However, because we have determined that the FAL was invalid we need not address the issue of the petition to reopen.
IT IS THEREFORE ORDERED that the ALJ's order dated July 19, 2010, is reversed insofar as it ordered that the employer to pay TTD benefits for the period of the claimant's incarceration.
IT IS THEREFORE FURTHER ORDERED that the ALJ's order dated July 19, 2010 is otherwise affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ John D. Baird
______________________________ Thomas Schrant
DONOVAN BOOKOUT, AURORA, CO, (Claimant).
SAFEWAY, INC., Attn: SUE POLYAKOVICS, C/O: RISK MANAGEMENT, PHOENIX, AZ, (Employer).
LAW OFFICE OF O'TOOLE SBARBARO, PC, Attn: NEIL D. O'TOOLE, ESQ., DENVER, CO, (For Claimant).
DWORKIN, CHAMBERS, WILLIAMS, YORK, BENSON EVANS, Attn: DAVID J. DWORKIN, ESQ., DENVER, CO, (For Respondents).
SAFEWAY DISTRIBUTION, DENVER, CO, 80216 (Other Party).