Opinion
W.C. No. 4-822-615.
July 11, 2011.
ORDER
The claimant and respondents seek review of an order of Administrative Law Judge Harr (ALJ) dated November 18, 2010 that found the claimant sustained a compensable injury and ordered the respondents to pay for certain medical benefits and limited temporary total disability benefits because the claimant was responsible for his termination from employment. We set aside the ALJ's termination of TTD benefits and remand for additional findings, and a new determination of the claimant's entitlement to ongoing TTD benefits. The ALJ's order is otherwise affirmed.
Several of the ALJ's findings of fact are summarized as follows. The claimant worked for the employer cutting meat off the arm bones of beef carcasses. The claimant worked for the employer from February 22, 2010 until mid-April 2010. Prior to his employment with the employer the claimant worked six weeks at a turkey processing plant performing cutting duties. The claimant alleged he sustained an injury to his hands while working for the respondent employer. The claimant received treatment at an emergency room. A physician diagnosed blisters and hand pain. A physician assistant indicated that the claimant's symptoms were consistent with repetitive grasping of his knife at work and work with his left hand. The physician assistant released the claimant to perform modified duty work as of April 14, 2010, on which date the employer placed the claimant on a non-occupational leave of absence until a physician cleared him to work. The claimant later moved to St. Louis, Missouri on May 2, 2010 and was responsible for the termination of his employment. The ALJ was persuaded that the claimant sustained a compensable injury and awarded temporary total disability benefits from April 12, 2010 through May 2, 2010. The ALJ also ordered the respondent insurer to pay the medical bills related to his treatment at the emergency room facility.
I.
The respondents challenge the ALJ's determination that the claimant suffered an injury in the nature of an occupational disease. A claimant sustains an occupational disease when the injury is the incident of the work, or a result of exposure occasioned by the nature of the work and does not come from a hazard to which the worker would have been equally exposed outside of the employment. Section 8-40-201(14), C.R.S. The claimant had the burden to prove the alleged occupational disease was caused, aggravated or accelerated by the claimant's employment or working conditions. Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251 (Colo. App. 1999). Moreover, as recognized by the ALJ, a compensable injury may be the result of an industrial aggravation of a pre-existing condition as long as the aggravation is the proximate cause of the disability or need for treatment. H H Warehouse v. Vicory, 805 P.2d 1167, 1169 (Colo. App. 1990).
Because the issue of causation is factual in nature, we must uphold the ALJ's pertinent findings if supported by substantial evidence in the record. § 8-43-301(8), C.R.S. This standard of review requires deference to the ALJ's resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Wal-Mart Stores, Inc. v. Industrial Claims Office, supra.
The respondents challenge the sufficiency of the evidence to support the ALJ's finding that the claimant sustained a compensable injury. In support of their contentions, the respondents argue that the ALJ erred by crediting certain statements attributed to the claimant while rejecting other portions of his testimony. The ALJ rejected the claimant's testimony that the claimant had notified his supervisor on April 9, 2010 about his condition. The ALJ also noted discrepancies between the claimant's account of waiting to go to the emergency room because he lacked transportation until his roommate returned, and a physician's report that the claimant drove himself to the emergency room and was not accompanied by another individual. However, the ALJ credited medical reports from the emergency treatment concerning the claimant's complaints of blisters, bilateral hand pain, and the occasional inability to unclench certain fingers. Exhibit 1. According to the respondents, the ALJ erred by crediting some of the claimant's representations to medical personnel in light of other statements by the claimant that the ALJ rejected. However, it was for the ALJ to resolve the inconsistencies and credit that portion of the testimony which he found credible, if any. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968); see also Monfort, Inc. v. Rangel, 867 P.2d 122 (Colo. App. 1993) (ALJ may credit part but not all of a witness' testimony).
The respondents also assert the ALJ's determination that the claimant sustained a compensable injury is contrary to the weight of the evidence. The respondents provide a recitation of various portions of the record and possible inferences that could support a determination that the claimant did not suffer from a work-related condition. We have no authority to substitute our judgment for that of the ALJ concerning the sufficiency and probative weight of the evidence. Arenas v. Industrial Claim Appeals Office, 8 P.3d. 558 (Colo. App. 2000); Rockwell International v. Turnbull, 802 P.2d 1182 (Colo. App. 1990). The ALJ's findings included the following. The claimant reported in a pre-employment questionnaire that he had no medical problems and was capable of repetitive work with his upper extremities. Exhibit 2. His job involved cutting meat with a knife in his right hand while using a hook in his left hand. The claimant walked along carcasses suspended from a trolley and would go to the end of the line after finishing a cut to restart the process. The claimant's job involved frequent use of his upper extremities and hands. Tr. at 20-21; Carter Depo. at 8-9; Exhibit I at 34. The claimant went to an emergency room and complained of blisters on his right hand and bilateral hand pain, as well as the occasional inability to unclench certain fingers of his left hand. Dr. Maxwell diagnosed right palm blisters and hand pain. Physician Assistant Shelley completed a Physician's Report of Workers' Compensation Injury, indicating that the claimant had symptoms of early tendinitis and cellulitis of his left hand and blisters, and that his symptoms were consistent with repetitive grasping of his knife at work and work with his left hand. The physician assistant released the claimant to perform modified duty work as of April 14, 2010. Exhibit 1. The ALJ's determination that the claimant sustained a compensable injury is supported by substantial evidence and is binding on review. Secton 8-43-301(8), C.RS.
II.
The claimant contends that the ALJ erred in determining that the claimant was responsible for the termination of his employment. Sections 8-42-105(4), C.R.S. and 8-42-103(1)(g), C.R.S. 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, 416 (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 is 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.
The claimant argues that the ALJ's finding that the claimant was advised not to return to work without a physician's clearance and the finding that the claimant failed to call or show for work in late April are contradictory. Therefore, the claimant asserts the findings cannot support a determination that the claimant was responsible for the termination of his employment. In addition, the claimant asserts that the ALJ erred by finding that the claimant constructively resigned his employment. We conclude that the ALJ's findings are insufficient as to whether the claimant was responsible for the termination of his employment.
According to the ALJ's findings, the claimant's wage loss after April 12, 2010 was due to his injury. The employer subsequently placed the claimant on a non-occupational leave of absence, but did not show that it offered the claimant modified work within his medical restrictions or that the claimant was released to regular work. Nonetheless, the claimant was scheduled to report to work between the 27th and 30th of April. Concerning the claimant's separation from his employment, the ALJ found that the claimant moved to St. Louis, Missouri on May 2, 2010 without informing the employer that he was quitting and moving. The ALJ characterized the claimant's move to St. Louis as a constructive resignation and concluded that the claimant was responsible for the termination of his employment because he voluntarily resigned.
However, the ALJ did not provide any corresponding findings that demonstrate the volitional nature of the claimant's relocation. Specifically, the ALJ did not find why the claimant moved or whether the reason for the move was one over which the claimant had the ability to exercise control. See e.g. Holsonback v. Brand Scaffold Builders, W.C. No. 4-724-509 (June 12, 2008).
The ALJ's findings of fact regarding the termination of the claimant's employment are not sufficient for review. Section 8-43-301(8), C.R.S. Moreover, it appears from the record that the claimant did not concede he acted volitionally when he moved out of state. Tr. at 18 (claimant testified he moved from Greeley because he could not pay his rent). It is therefore necessary to remand this matter to the ALJ to make specific findings as to whether the claimant acted volitionally under the totality of the circumstances surrounding his separation from his employment and determine the claimant's entitlement to ongoing TTD benefits.
IT IS THEREFORE ORDERED that the ALJ's order terminating the claimant's TTD benefits on May 2, 2010 is set aside and the matter is remanded to the ALJ for additional findings and a new determination of the claimant's entitlement to TTD benefits on and after that date;
IT IS FURTHER ORDERED that the ALJ's order dated November 18, 2010 is otherwise affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ John D Baird
_______________________ Dona Rhodes
DORAN NUUR, ST LOUIS, MO, (Claimant).
ZURICH AMERICAN INSURANCE COMPANY, Attn: JACKIE BONAVIDA, C/O: GALLAGHER BASSETT SERVICES, INC., ENGLEWOOD, CO, (Insurer).
SAWAYA, ROSE KAPLAN, PC, Attn: BRITTON MORRELL, ESQ., GREELEY, CO, (For Claimant).
THOMAS POLLART MILLER, LLC, Attn: EMILY F. AHNELL, ESQ., GREENWOOD VILLAGE, CO, (For Respondents).