IN THE MATTER OF THE CLAIM OF CHRISTINE TEMPLE, Claimant, v. KROLL GOVERNMENT SERVICES, Employer, and AMERICAN HOME ASSURANCE, Insurer, Respondents.

W.C. No. 4-761-187.Industrial Claim Appeals Office.
October 14, 2009.

ORDER
The respondents seek review of an order of Administrative Law Judge Jones (ALJ) dated June 25, 2009, that determined the claimant was not responsible for his termination and found the respondents were liable for continuing temporary total disability (TTD) benefits. We affirm the order in part, set it aside in part, and remand for further proceedings.

It appears that no testimony was presented at the hearing. The parties stipulated to certain facts and submitted exhibits. On June 2, 2008, the claimant suffered an industrial injury to her left foot. The claimant received TTD benefits. Dr. Holthouser was the claimant’s primary care physician. The claimant was released to work with restrictions for modified work by Dr. Holthouser on September 16, 2008. Respondents sent letters to the claimant dated October 10, 2008, October 16, 2008 and October 22, 2008, offering modified duty. The parties stipulated that the letters do not meet the requirements of Workers Compensation Rule of Procedure 6, 7 Code Colo. Reg. 1101-3 (2009). The respondents also sent a letter dated October 30, 2008 terminating the claimant’s employment for failure to return to work.

The ALJ concluded that the claimant’s return to work is controlled by Rule 6 and that because the letters offering modified work did not comply with the rule, they were ineffective to offer the claimant an opportunity to return to work. Moreover, the ALJ concluded that the letters did not provide the respondents with justification to terminate the claimant’s employment for failure to comply with the offers to return to a modified duty. The ALJ was not persuaded that Rule 6 only applies to circumstances where the

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respondents desire to unilaterally terminate TTD benefits. The ALJ determined that Rule 6 insures that injured workers only return to the workplace in a modified duty position approved of by an authorized treating physician. The ALJ concluded that Rule 6 would have no meaning if the respondents could circumvent the intent of the rule by ordering the injured worker’s return to modified duty by correspondence that does not comply with the rule.

I.
On review, the respondents first contend the ALJ erroneously awarded temporary partial disability benefits. Relying on § 8-42-105(3)(d)(I), C.R.S. 2009, and Laurel Manor Care Center v. Industrial Claim Appeals Office, 964 P.2d 589 (Colo. App. 1998), the respondents contend the claimant’s entitlement to temporary disability benefits terminated when she failed to begin the offer of modified employment. We agree with the respondents that the ALJ erred in construing Rule 6 as providing the sole means by which TTD may be terminated, even after a hearing. Rather, in our view, Rule 6 provides the procedural requirements that must be satisfied as a prerequisite t unilateral termination of TTD without a hearing.

Section 8-42-105 C.R.S. 2009 provides that upon the occurrence of one of four enumerated conditions TTD benefits shall cease. In relevant part § 8-42-105 (3)(d)(I) provides that temporary total disability benefits shall continue until the attending physician gives the employee a written release to return to modified employment, such employment is offered to the employee in writing, and the employee fails to begin such employment. The termination of TTD benefits under any one of the four enumerated conditions is mandatory. Burns v. Robinson Dairy, Inc., 911 P.2d 661 (Colo. App. 1995).

In Laurel Manor Care Center a temporarily disabled claimant returned to work, but left the same day because she believed the employer was requiring her to perform duties beyond her restrictions. The following day, the claimant returned to the job site and was presented with a written offer of employment listing duties within her medical restrictions. However, the claimant did not return to work after being presented with the offer. The Colorado Court of Appeals held that in the absence of proof the modified offer was unreasonable, the claimant’s failure to begin the modified employment triggered the termination of temporary total disability benefits under the predecessor statute to § 8-42-105(3)(d)(I).

Here, there was a dispute over whether the offer of employment complied with Dr. Holthouser’s restrictions. We note the parties did not stipulate to the exact nature of the restrictions for modified work provided by Dr. Holthouser but did attach medical reports. It therefore became a factual issue whether the employment offered complied with the written release to return to modified employment given by Dr. Holthouser. The

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determination of the extent of the restrictions imposed by the treating physician is a question of fact for resolution by the ALJ, and her finding must be upheld if supported by substantial evidence in the record. Blue Mesa Forest v. Lopez, 928 P.2d 831 (Colo. App. 1996); Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo. App. 1995).

Here it is undisputed that the physician gave the employee a written release to return to modified employment. However, there was no agreement whether employment within those restrictions was offered to the employee and the ALJ did not resolve that factual issue. Therefore, we must remand the matter for resolution of that factual issue.

On remand, the ALJ shall determine whether the employer made a valid written offer of modified employment within the meaning of § 8-42-105(3)(d)(I). If the ALJ finds there was such an offer, she shall determine whether the claimant refused to begin the employment, which terminates her entitlement to temporary disability benefits under § 8-42-105(3)(d)(I), in accordance with Laurel Manor.

In this regard, we note that the stipulation by the parties that the written offers of modified work did not comply with Rule 6 does not preclude the ALJ from finding that the claimant received and rejected an offer of modified work within her restrictions. Rule 6-8, which is entitled “Failure to Comply with Requirements of Rule 6,” provides that TTD may still be terminated by an ALJ after a hearing even absent compliance with the rule: “Temporary disability benefits may not be suspended, modified or terminated except pursuant to the provisions of this rule or pursuant to an order from the Director under 6-4(C), or an order of the Office of Administrative Courts following a hearing.” Therefore, even given the respondents’ admitted failure to comply with Rule 6, an ALJ may still find that a valid offer of modified work was tendered and refused. Here, the ALJ must make factual findings regarding that disputed issue.

II.
The respondents also contend that the ALJ erred in her conclusion that the claimant was not responsible for her termination from employment and therefore TTD benefits should not be terminated. The respondents argue that it was error to assume that because the offers of modified duty did not strictly comply with Rule 6 that the claimant could not be responsible for her termination. The respondents contend that the issue of TTD benefits under the termination statutes is not the same as the issue of whether there is entitlement to unilateral termination of TTD, without a hearing under Rule 6.

The termination statutes, § 8-42-105(4), C.R.S. 2009, and § 8-42-103(1)(g), C.R.S. 2009 both provide 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 the context of the termination statutes, the

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term “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). The determination of fault must be based upon an examination of the totality of circumstances Id.

We acknowledge as pointed out by the respondents that here the ALJ found that the letters of October 10, 26, and 22, 2008 did not comply with Rule 6 and therefore were ineffective to command the claimant’s return to work. We additionally note that the ALJ determined that it would not be reasonable to allow the respondents to disobey Rule 6 and benefit from their actions by terminating the injured worker and claiming the termination was the injured workers’ fault.

However, we do not read the ALJ’s order as determining, as a matter of law, that because of the respondents failure to comply with Rule 6 that the claimant could not be responsible for her termination. We note that an ALJ is not held to a standard of absolute clarity when issuing findings of fact and conclusions of law provided the basis of the order is apparent from the findings, which are entered. When considering an order we may note findings, which, although not expressly contained in the order, are necessarily implied by it. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo. App. 2000).

In our view, in her determination of responsibility for termination of employment the ALJ could consider the respondents failure to comply with Rule 6. Here, the ALJ in addition made findings regarding the respondents’ assertion that the claimant never responded in writing to the employer regarding the offer of modified duty. The respondents had argued that the claimant had chosen to ignore the employer and should have known that this would result in her termination. The ALJ found that the claimant did respond to the employer’s letters through her attorney in two letters. The ALJ found that in response to the employer’s letters on October 24, 2008 the claimant’s attorney sent a letter to the adjuster handling the claimant’s workers’ compensation claim with a copy sent to the employer. The ALJ further noted that the claimant’s attorney sent a subsequent letter to the respondents’ attorney dated November 25, 2008. We note that in these letters the attorney for the claimant pointed out the requirements of Rule 6 in connection with offers of modified employment and asked to review any inquiry made by the respondents to the authorized treating physician regarding the claimant’s ability to perform any detailed offer of modified duty and the physician’s response to such inquiry. Exhibit E. The ALJ also noted the claimant would have testified that in later October 2008 she left a voice mail message for a representative of employee relations with the parent company of the employer stating that she was receiving harassing letters from the employer.

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The burden to show that the claimant was responsible for her discharge is on the respondents. Colorado Compensation Insurance Authority v. Industrial Claim Appeals Office, 18 P.3d 790 (Colo. App. 2000). After reviewing the submitted evidence the ALJ concluded that the respondents had not carried that burden and that the claimant was not responsible for her termination from employment. Therefore, the ALJ concluded that TTD benefits should not be terminated.

Here the evidence on whether the claimant simply ignored the offers of employment was conflicting. In addition, it was stipulated that the offer of employment did not comply with Rule 6. 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. 2009; 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.

In our view, there was substantial evidence to support the ALJ’s determination that the claimant was not responsible for her termination from employment. Therefore, we are not persuaded to interfere with the ALJ’s determination.

The claimant in her brief opposing the petition to review has asserted that the respondents have filed a new Final Admission of Liability, which renders the current appeal moot. However, our review is restricted to the record before the ALJ, and the factual assertions made on appeal by the claimant may not substitute for evidence, which is not in the record. See City of Boulder v. Dinsmore, 902 P.2d 925 (Colo. App. 1995); Subsequent Injury Fund v. Gallegos, 746 P. 2d 71 (Colo. App. 1987); Voisinet v. Industrial Claim Appeals Office, 757 P.2d 171 Colo. App. 1988) See Lewis v. Scientific Supply Co. 897 P.2d 905 (Colo. App. 1995). However, we note that in order to avoid the expenditure of administrative resources, the parties may stipulate to the ALJ that this matter is moot and should be dismissed. Additionally, although our jurisdiction ends with the remand to the ALJ of this matter, in our view the ALJ has the authority to issue an order to the parties in the nature of an order to show cause why the matter should not be dismissed as moot.

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IT IS THEREFORE ORDERED that the ALJ’s order dated June 25, 3009 is set aside insofar as it failed to consider whether the employer made a written offer of modified employment within the meaning of § 8-42-105(3)(d)(I). The matter is remanded for entry of a new order on this issue. On remand, the ALJ shall determine whether the employer made a written offer of modified employment within the meaning of § 8-42-105(3)(d)(I). If the ALJ finds there was such an offer, she shall determine whether the claimant refused to begin the employment which terminates her entitlement to temporary disability benefits under § 8-42-105(3)(d)(I).

IT IS THEREFORE FURTHER ORDERED that the ALJ’s order is otherwise affirmed.

INDUSTRIAL CLAIM APPEALS PANEL

______________________________ Curt Kriksciun

______________________________ Thomas Schrant

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CHRISTINE TEMPLE, FORT COLLINS, CO, (Claimant).

KROLL GOVERNMENT SERVICES, Attn: KRISTI ORTON, LOVELAND, CO, (Employer).

AMERICAN HOME ASSURANCE, Attn: POLLY LITTLE, C/O: AIG DOMESTIC CLAIMS, SHAWNEE MISSION, KS, (Insurer).

KENNETH M. PLATT ASSOCIATES, PC, Attn: KENNETH M. PLATT, ESQ., GREELEY, CO, (For Claimant).

TREECE, ALFREY, MUSAT BOSWORTH, PC, Attn: MATTHEW C. HAILEY, ESQ., DENVER, CO, (For Respondents).

CHRISTINE TEMPLE, YANCEYVILLE, NC, (Other Party).

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