W.C. Nos. 4-518-832 4-523-989.Industrial Claim Appeals Office.
August 11, 2003.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) which denied the claim for temporary disability benefits commencing November 27, 2001. We affirm.
In May 1999, the claimant suffered multiple injuries during a slip and fall while working in the deli department of the respondent’s store. The claimant reached maximum medical improvement on March 27, 2000, and was released to return to her regular employment. In September 2001, the claimant sustained a repetitive motion injury to her upper extremities while working in the respondent’s bakery department.
On November 27, 2001, the employer discharged the claimant for excessive absenteeism. The ALJ found the claimant was responsible for the termination from employment. Consequently, the ALJ denied the claim for temporary total disability benefits commencing November 27, 2001.
On review, the claimant contends the pertinent absences were caused by side effects of the medication prescribed to treat the industrial injury. Specifically, the claimant contends that the Amitriptyline prescribed by Dr. Gray to relieve her sleep disorder impaired her ability to wake up and timely get to work. Therefore, the claimant contends she was not responsible for the termination from employment. We perceive no basis on which to disturb the ALJ’s order.
Initially, we note that the claimant’s Designation of Record includes the “entire files maintained by the Division of Workers’ Compensation.” The record transmitted to us on appeal apparently does not include the complete Division of Workers’ Compensation file. However, there is no evidence in the record which tends to suggest the claimant requested the ALJ to consider the entire Division of Workers’ Compensation file as part of the evidentiary record for the hearing. See City of Boulder v. Dinsmore, 902 P.2d 925 (Colo.App. 1995); Rules of Procedure, Part VIII(A)(6), 7 Code Colo. Reg. 1101-3 at 22. Our review is limited to the evidentiary record before the ALJ. Consequently, we have not obtained or considered the Division of Workers’ Compensation file, but restricted our review to the record made at the hearing.
To receive temporary disability benefits, a claimant must establish a causal connection between the industrial disability and the loss of wages. Section 8-42-103(1), C.R.S. 2002. However, § 8-42-105(4) and identical language in § 8-42-103(1)(g), C.R.S. 2002, provide that “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 concluded § 8-42-105(4) introduces into the Act a limited concept of “fault” which focuses on the reason or reasons for the termination of employment. A claimant is “responsible” for the termination if the claimant acted volitionally or exercised some control in light of the totality of the circumstances. Cf. Padilla v. Equipment Corp. 902 P.2d 414 (Colo.App. 1994).
The question of whether the claimant acted volitionally is ordinarily dictated by the factual circumstances found by the ALJ. Colorado Springs Disposal v. Industrial Claim Appeals Office, supra. We are bound by the ALJ’s factual determinations in this case if supported by substantial evidence. Section 8-43-301(8), C.R.S. 2003. This standard requires us to review the evidence in the light most favorable to the prevailing party, and accept the ALJ’s resolution of conflicts in the evidence, as well as plausible inferences drawn from the evidence. Industrial Commission v. Royal Indemnity Co., 124 Colo. 210, 236 P.2d 293 (1951); Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
Here, the ALJ found the employer had a “point” system for unexcused absences and tardiness. An employee who exceeded the maximum allowable points was subject to discharge.
The ALJ also found the claimant had a “history of bad attendance,” prior to the upper extremity injury. In particular, the ALJ found that in December 1999, the claimant was issued a warning letter about excessive absenteeism. During 2000, numerous other warning letters were issued to the claimant, and in January and March 2001, the claimant was suspended for three days for attendance violations. Further, the ALJ found that on November 6, 15, and 24, 2001, the claimant incurred additional unexcused absences for failing to call in or show up for work.
Concerning the latter three absences, the ALJ found the claimant was on a low dose of Amitripyline that would not have precluded her from arousing for her schedule shift. (Finding of Fact 28). Therefore, the ALJ explicitly rejected the claimant’s testimony that the Amitriptyline caused her to oversleep. Rather, the ALJ found the claimant failed to adhere to the employer’s attendance policy and volitionally caused the termination of employment.
The claimant’s arguments to the contrary, the ALJ explicitly recognized that it was the respondent’s burden to prove the claimant was responsible for the termination of employment. (Conclusions of Law 4, p. 10). However, the record is subject to conflicting inferences concerning the cause of the claimant’s last three absences. As we read the ALJ’s order, he resolved the conflict against the claimant and implicitly relied on evidence which contradicted the claimant’s testimony that the effects of the Amitriptyline rendered her physically incapable of complying with the employer’s attendance policy. Therefore, we reject the claimant’s contention that the ALJ misapplied the burden of proof by requiring her to prove the cause of her absences.
In addition, the ALJ’s finding that the prescribed dose of Amitriptyline did not preclude the claimant from arriving to work on time is supported by substantial evidence and plausible inferences from the record. The claimant testified that her shift started at 10 p.m. and ended at 6 a.m. She stated that she normally would get home and get her daughter off to school and then go to sleep for a “couple of hours” (Tr. November 18, 2002, p. 87). The claimant stated she would then get up and have dinner with her daughter when her daughter returned from school, and she would sleep again from 4 p.m. until it was time to go to work. (Tr. November 18, 2002, p. 88). However, she stated that she failed to show up for work or call in to the employer on November 6, November 15, and November 16 because the Amitriptyline “would knock [her] out.” (Tr. November 18, 2002, pp. 27, 43).
Dr. Gray initially prescribed 25 milligrams (mg) of Amitriptyline for sleep difficulties caused by pain from the industrial injury. Dr. Gray opined that this is considered a “baby dose.” (Tr. July 15, 2002. pp. 103, 113). The claimant testified that she later told Dr. Gray the medication was making her drowsy, to which Dr. Gray instructed her to “double it.” (Tr. November 18, 2002, p. 63). On October 16, Dr. Gray increased the dose to 75 mg., which he stated was the “typical, adult dose.” (Tr. July 15, 002, p. 113).
Admittedly, Dr. Brodie and Dr. Rook testified that one of the principal side effects of Amitriptyline is drowsiness. (Tr. pp. 111, 165). However, Dr. Brodie also opined that because the claimant was started on less than half the minimum dose prescribed for depression, he expected the magnitude of that side effect would not predispose the claimant to being non-arousable such that she “couldn’t arise from bed.” (Tr. November 18, 2002, p. 198). In fact, Dr. Brodie testified that if the claimant had an alarm clock that went off for waking up to go to work, a low dose of Amitriptyline would not prevent the claimant from waking. His opinion remained the same even if the dose was doubled or tripled. (Tr. November 18, 2002, p. 199).
The ALJ could reasonably infer from Dr. Brodie’s testimony that the level of Amitriptyline taken by the claimant would not preclude her from awakening to get to work. Further, Dr. Brodie’s opinions are consistent with the claimant’s testimony that she was able to sleep for a few hours after she returned home from her work shift and get up to be with her daughter when she got home. Furthermore, the ALJ’s findings support the conclusion the claimant was responsible for the termination from employment.
Because we conclude the claimant was responsible for the termination of employment, any error in the ALJ’s finding that the employer provided modified employment at the time of the employment termination is harmless. This is true because the court in Colorado Springs Disposal v. Industrial Claim Appeals Office, 58 P.3d 1061 (Colo.App. 2002), concluded that § 8-42-105(4) applies to the termination from regular or modified employment.
In reaching our conclusions, we are mindful that the court in Longmont Toyota Inc., v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 02CA0441, February 13, 2003), concluded the legislative history of § 8-42-105(4) indicated the statute was enacted to “resurrect” former law and overrule PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995). PDM stood for the proposition that a claimant found to be at fault for the termination of employment was not permanently barred from receiving temporary disability benefits if the subsequent wage loss was “to some degree” a consequence of the industrial injury. As argued by the claimant, the law in effect before PDM is reflected in Monfort of Colorado v. Husson, 725 P.2d 67 (Colo.App. 1986), rev’d on other grounds, 783 P.2d 273 (Colo. 1989), which held that if a temporarily disabled claimant returns to modified employment, and is “at fault” for the loss of that employment, the post-separation wage loss is caused not by the injury, but by the claimant’s act which led to the separation. Thus, the prior law was limited to circumstances where the claimant is terminated from “modified” employment.
However, we and the ALJ are bound by published decisions of the Court of Appeals unless modified or reversed by the Supreme Court. C.A.R. 35(f). Consequently, unless and until Colorado Springs Disposal is modified or reversed, § 8-42-105(4) is applicable to the termination from regular employment.
The claimant’s remaining arguments are unpersuasive. Contrary to the claimant’s contention, Longmont Toyota Inc., v. Industrial Claim Appeals Office, supra, did not establish a three-prong test for determining whether the claimant is “responsible” for the termination of employment.
Insofar as the claimant contends the termination was motivated by the employer’s desire to avoid liability for temporary disability benefits, and not excessive absenteeism, the ALJ implicitly rejected this contention. To the contrary, the ALJ found that but for the excessive absenteeeism, the claimant would have continued to be employed by the respondent-employer. (See Finding of Fact 37); Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000) (we may consider findings which are necessarily implied by the ALJ’s order). Based on this record, we cannot say the ALJ’s finding is erroneous.
IT IS THEREFORE ORDERED that the ALJ’s order dated December 17, 2002, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Kathy E. Dean
______________________________ 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. 2002. 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, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed August 11, 2003 to the following parties:
Shani Chapman, 916 N. Prospect, Apt. #10, Colorado Springs, CO 80903
Hank Hahne, Safeway, Inc., 6900 S. Yosemite, Englewood, CO 80112-1412
Karl Schulz, Esq. and Steven U. Mullens, Esq., P. O. Box 2940, Colorado Springs, CO 80901-2940 (For Claimant)
Patricia Jean Clisham, Esq., 1125 17th St., #600, Denver, CO 80202 (For Respondent)
BY: A. Hurtado