W.C. No. 4-563-871.Industrial Claim Appeals Office.
March 31, 2005.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) which denied the claim for temporary total disability (TTD) benefits commencing December 16, 2003. The claimant contends the ALJ erred as a matter of fact and law in concluding the claimant was “responsible” for the termination from employment within the meaning of § 8-42-103(1)(g), C.R.S. 2004, and § 8-42-105(4), C.R.S. 2004 (collectively the termination statutes). We affirm.
The ALJ’s findings may be summarized as follows. The claimant was a nurse and sustained a compensable back injury on September 17, 2002. The treating physician imposed restrictions which precluded the claimant from performing her regular duties, but the employer (hospital) provided modified employment on a full-time basis. The claimant’s symptoms waxed and waned, and sometimes her restrictions would be increased.
In the fall of 2003, after the hospital moved to a new facility, the claimant worked in the pediatric and medical-surgical (med surg) units. The claimant requested to work exclusively in the “mother-baby” unit because she believed it required less lifting and bending, but the request was denied.
On October 2, 2003, the claimant was examined by Dr. Grabowski and reported her symptoms were increasing because of patient transfer activities. Dr. Grabowski increased the claimant’s lifting restrictions from 40 pounds to 30 pounds and prohibited her from “bending for patient transfers.” Nevertheless, the claimant returned to work and continued working until October 8, 2003, when she went on family medical leave (FML) to assist her ailing father.
On October 2 the claimant took the newly imposed restrictions to a manager, Ms. Bishop. Bishop imposed a corrective action on the claimant for longstanding “behavioral problems.” At that time the claimant told Bishop that the duties in the med surg unit aggravated her symptoms and she might not be able to perform them.
The claimant returned from FML on October 24, but advised Bishop and the hospital that she needed additional FML. The claimant’s request was granted. However, on December 16, 2003, the claimant called Bishop and stated that she was resigning because she was absent and did not wish to burden her coworkers during the holiday season. The claimant did not mention inability to perform the modified employment as a reason for her resignation.
The ALJ concluded, based on these findings, that the claimant was “responsible” for the separation within the meaning of the termination statutes. Therefore, the ALJ denied the claim for TTD benefits commencing December 16, 2003.
On review, the claimant argues the evidence does not support the ALJ’s findings she did not leave work as a result of the injury. The claimant argues the evidence establishes that she was compelled to work beyond her restrictions, and that she quit because she understood that the employer intended to require her to perform to regular duties when she returned from FML. We reject this argument.
The claimant correctly argues that a claimant is not “responsible” for quitting employment if the reason for the termination is that the employer is requiring the claimant to work beyond the claimant’s medical restrictions. In a series of decisions we have held that a claimant does not act “volitionally” or exercise control over the circumstances leading to the termination if the effects of the injury preclude the performance of the assigned duties and are the cause of the termination. Eg. Blair v. Art C. Klein Construction Inc., W.C. No. 4-556-576 (November 3, 2003); Bonney v. Pueblo Youth Service Bureau, W.C. No. 4-485-720 (April 24, 2002).
However, it is also true that the question of whether the claimant acted volitionally so as to be “at fault” for the termination, and therefore “responsible” for it, is one of fact for resolution by the ALJ. Padilla v. Industrial Claim Appeals Office, 902 P.2d 414, (Colo.App. 1994), opinion after remand, 908 P.2d 1185 (Colo.App. 1995) Ellis v. All American Home of Colorado, Inc., W.C. No. 4-544-396 (June 26, 2003), aff’d., Ellis v. Industrial Claim Appeals Office, (Colo.App. No. 03CA1356, April 1, 2004) (not selected for publication). Because the issue is factual, we must uphold the ALJ’s resolution if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2004. This standard of review requires us to consider the evidence in a light most favorable to the prevailing party, and defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003).
Here, there is substantial, albeit conflicting, evidence to support the ALJ’s finding that the claimant quit not because she was required to work beyond her restrictions, but because she did not wish to inconvenience her coworkers during the continuance of the FML. Indeed, the ALJ credited Bishop’s testimony, and the claimant’s own testimony, that the reason the claimant gave for quitting was to avoid inconveniencing the coworkers. Further, the ALJ credited Bishop’s testimony that the employer accommodated the claimant’s restrictions, and implicitly discredited the claimant’s contrary testimony. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000) (we may consider findings necessarily implied by the order, and evidence not mentioned in the order was presumably rejected). Consequently, the order must be upheld.
The claimant argues that the ALJ was required to apply §8-42-105(3)(d)(I), C.R.S. 2004, and that the ALJ could not terminate benefits because no employment was offered to the claimant in writing. However, § 8-42-105(3)(d)(I) concerns termination of TTD benefits in cases where the claimant is released to modified employment, the employment is offered in writing, and the claimant fails to begin the employment. That statute does not apply where the claimant returns to modified employment and continues it for a substantial period of time Liberty Heights at Northgate v. Industrial Claim Appeals Office, 30 P.3d 872 (Colo.App. 2001). Here, the claimant returned to full-time modified employment after the injury, and was absent in December 2003 only because of the FML. Thus, the ALJ properly analyzed the case under the termination statutes which clearly apply to cases involving the loss of post-injury “modified employment.” Anderson v. Longmont Toyota, Inc., 102 P.3d 323 (Colo. 2004); Grisbaum v. Industrial Claim Appeals Office,
___ P.3d ___ (Colo.App. No. 03CA1488, February 24, 2005).
IT IS THEREFORE ORDERED that the ALJ’s order dated November 15, 2004, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________ David Cain
____________________ Robert M. Socolofsky
Maureen Fazendin, Cave Creek, AZ, Beth Reasoner, Boulder Community Hospital, Boulder, CO, Zach Nichol, Tristar Risk Management, Denver, CO, David Levy, Esq., Boulder, CO, (For Claimant).
Andrew Bantham, Esq. and T. Paul Krueger, II, Esq., Fort Collins, CO, (For Respondents).