W.C. No. 4-549-566.Industrial Claim Appeals Office.
August 7, 2003.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ), which denied his claim for temporary total disability (TTD) benefits. The claimant contends the ALJ erred in denying TTD benefits because he was not a “temporarily disabled” employee within the meaning of § 8-42-103(1)(g), C.R.S. 2002, and § 8-42-105(4), C.R.S. 2002 (termination statutes). The claimant further contends the evidence does not support the ALJ’s legal conclusion that he was “at fault” for the termination of employment. Finally, the claimant contends the termination statutes are unconstitutional. We affirm.
The claimant sustained a compensable injury to his right wrist on July 29, 2002. The claimant reported the injury immediately but continued performing his regular employment until August 5, 2002, when he requested the employer to refer him to a physician for treatment. The employer’s authorized treating physician diagnosed a right wrist sprain and imposed restrictions against lifting and repetitive activity. In compliance with these restrictions the employer placed the claimant on light duty.
On August 12, 2002, a physician’s assistant under supervision of the authorized treating physician placed the claimant at maximum medical improvement (MMI), with no medical impairment, and released the claimant to return to regular employment. The claimant continued to perform regular duties until August 19, 2002.
The parties presented conflicting evidence concerning the events of August 19, 2002. The claimant testified that he received a Notice of Contest filed by the respondent-insurer. The claimant, after discussing the situation with his immediate supervisor, confronted the employer’s safety director (Geiger). According to the claimant, Geiger stated the employer had received a phone call indicating the claimant did not injure himself at work, and that the employer intended to prosecute the claimant for fraud. After considering the circumstances, the claimant decided to quit the employment and challenge the employer’s false allegations. (Tr. Pp. 22-23, 36-40).
Geiger testified that he told the claimant the employer did not intend “prosecute” the claimant for fraud, and that the information concerning the telephone call had been passed to the insurer because it was his “duty” to do so. According to Geiger the claimant became angry and quit the job later that day.
After the separation from employment the claimant continued to experience symptoms in his wrist. On September 5, 2002, the claimant was again examined by the physician’s assistant and referred for a surgical consultation. The claimant was examined by a surgeon who diagnosed a TFCC tear and a ganglion cyst. Surgery was recommended. In November 2002 the claimant declined to undergo surgery because the respondents denied liability for TTD benefits associated with the surgery. However, the claimant underwent surgery in February 2003.
Crediting the respondents’ evidence, and implicitly discrediting the claimant’s testimony concerning the events of August 19, the ALJ found the employer “did not threaten to seek a criminal prosecution of claimant for fraud,” and that the claimant “quit his job” because he was angry over receiving the notice of contest filed by the insurer. The ALJ further found that if the claimant had not quit his job, the employer would have continued to provide light-duty work within the restrictions. Under the circumstances, the ALJ concluded that claimant was “responsible” for the separation from employment within the meaning of the termination statutes and denied the claim for TTD benefits commencing September 5, 2002.
I.
On review, the claimant first contends the termination statutes are inapplicable because he was placed at MMI and released to regular employment August 12, prior to the August 19 date of the termination. The claimant reasons that he could not be a “temporarily disabled” employee after reaching MMI and being released to regular employment. We disagree.
In Colorado Springs Disposal v. Industrial Claim Appeals Office, 58 P.3d 1061 (Colo.App. 2002), the Court of Appeals held that the term “employment” as used in the termination statutes encompasses both “regular” and “modified” employment. Indeed, the court stated that if General Assembly “had intended to exclude nonmodified employment factual circumstances from the reach of the termination statutes, it certainly could have tailored the statutes accordingly.” Id. at 1063. Subsequently, in Longmont Toyota, Inc. v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 02CA0441, February 13, 2003), cert. pending, the court held that if a claimant is responsible for a termination from employment the causative link between the industrial injury and subsequent temporary wage loss is permanently severed. The court also concluded that the causative link cannot be restored even if the claimant’s condition subsequently worsens and renders the claimant unable to work.
In light of Colorado Springs Disposal, the termination statutes’ reference to a “temporarily disabled employee” cannot be construed as limiting the statutes’ applicability to situations where the claimant is temporarily disabled when the termination occurs. Rather, the reference must contemplate all claimants who allege they became “temporarily disabled employees” at some point subsequent to the termination. It follows that regardless of whether the claimant was at MMI and released to regular employment when the termination occurred the termination statutes remained applicable when the claimant sought TTD for the post-termination wage loss.
II.
The claimant next contends the evidence does not support the ALJ’s conclusion that he was “responsible” for the termination from employment. Essentially, the claimant argues the employer’s conduct in accusing the claimant of fraud created intolerable working conditions. Therefore, the claimant reasons he was not “at fault” for ending the employment relationship. We find no error.
In Colorado Springs Disposal v. Industrial Claim Appeals Office, supra, the court held the term “responsible,” as used in the termination statutes, introduces into the Act the concept of “fault” which, at a minimum, requires a volitional act by the claimant. Thus, a claimant is “responsible” for a termination of employment if the claimant performs a volitional act or exercises some degree of control over the circumstances leading to the termination. See Gonzales v. Industrial Commission, 740 P.2d 999 (Colo. 1987); Brinsfield v. Excel Corp., W.C. No. 4-551-584
(July 18, 2003).
In most cases, the question of whether the claimant acted volitionally, and therefore is “responsible” for a termination from employment, is a question of fact to be decided by the ALJ based on consideration of the totality of the circumstances. Gonzales v. Industrial Commission, supra; Brinsfield v. Excel Corp., supra. Thus, we must uphold the ALJ’s pertinent findings if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2002. This is a narrow standard of review which requires us to view the evidence in a light most favorable to the prevailing party, and defer to the ALJ’s credibility determinations, resolution of conflicts in the evidence, and plausible inferences drawn from the record. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
Here, the claimant’s argument assumes that the ALJ credited the testimony that the employer threatened to prosecute the claimant for fraud. However, the ALJ implicitly discredited the claimant’s testimony and credited Geiger’s testimony that no such threat was made. Thus, there is ample evidence in the record to support the ALJ’s finding that the claimant engaged in volitional conduct because he exercised a degree of control over the circumstances leading to the termination. The fact that other findings were possible affords no basis for appellate relief.
In reaching this conclusion, we should not be understood as holding that the question of “responsibility” for termination of employment is always one of fact. To the contrary, Colorado Springs Disposal v. Industrial Claim Appeals Office, supra, held as a matter of law that a claimant is not “responsible” for a termination if the “employer terminates an employee because of the employee’s injury or injury-producing conduct.” 58 P.3d at 1064. We merely hold that the facts, as found by the ALJ in this case, support the determination that the claimant was “responsible” for the termination.
III.
The claimant also argues the termination statutes are unconstitutional if they are construed to apply to terminations from regular employment after the claimant has been placed at MMI. However, we lack jurisdiction to address this argument. Celebrity Custom Builders v. Industrial Claim Appeals Office, 916 P.2d 539 (Colo.App. 1995).
IT IS THEREFORE ORDERED that the ALJ’s order dated February 25, 2003, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
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, Colorado 80203, by filing a Petition to Review with the Court, within twenty (20) days after the date this Order was 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 7, 2003 to the following parties:
Raymond Dominguez, 7040 Franconia Ct., Colorado Springs, CO 80817
Stresscon Corporation, c/o Europartners, Inc., 1801 Broadway, #1720, Denver, CO 80202
Legal Department, Pinnacol Assurance — Interagency Mail
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909-4349 (For Claimant)
Merrily S. Archer, Esq., and Lisa A. Simons, Esq., 1625 Broadway, #2300, Denver, CO 80202 (For Respondents)
By: A. Hurtado