W.C. No. 4-683-744.Industrial Claim Appeals Office.
May 25, 2007.
ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) dated October 12, 2006 that determined the claimant was responsible for his termination from employment and that denied the claimant’s request for temporary total disability benefits. We reverse the order insofar as it denies temporary total disability benefits and remand for further findings.
The ALJ’s pertinent findings of fact are as follows. The claimant was employed as a ranch hand for the employer. In mid-December 2005, the claimant began to experience low back and left leg pain. The claimant reported to one of the owners of the ranch, that he believed he had a work injury. The owner made no response. The claimant chose to be treated by Dr. Rollins who diagnosed low back pain and possible sacral strain and referred the claimant to a chiropractor. The chiropractor imposed restrictions for sedentary work only and the employer provided the claimant with modified duty of answering the telephone. On March 27, 2006 Dr. Rollins reexamined the claimant and diagnosed a herniated disc. Dr. Rollins imposed the same sedentary work restrictions. On March 28, 2006, the claimant moved out of the ranch in order to move in with his mother. The claimant left a copy of the March 27, report by Dr. Rollins and a letter with instructions for his last paycheck.
The claimant has not filed a brief in support of his petition to review, which to some extent limits the effectiveness of our review Ortiz v. Industrial Commission,
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734 P.2d 642 (Colo.App. 1986). However, the petition to review specifically states that the ALJ’s determination that the claimant was responsible for the termination of his employment is supported neither by the factual record nor by applicable law. We conclude that in this respect further proceedings are required.
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)(g), C.R.S. 2006 and § 8-42-105(4), C.R.S. 2006 (the termination statutes) provide that in cases where “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 “appears to introduce into the Act the limited concept of `fault’ used in termination cases before the supreme court’s decision in” PDM Molding Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995). Under this standard, the fault determination depends on whether the claimant performed some volitional act or otherwise exercised a degree of control over the circumstances resulting in the termination. See Padilla v. Digital Equipment Corp., 902 P.2d 414, 416 (Colo.App. 1994), opinion after remand, 908 P.2d 1185 (Colo.App. 1995).
The termination statutes provide an affirmative defense to a claim for TTD and the respondents bore the burden of proof to establish their applicability. Witherspoon v. Metropolitan Club W. C. No. 4-509-612 (December 16, 2004). White-Skunk v. QK, Inc., W.C. No. 4-500-149
(October 3, 2002). Generally, 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; Jeppsen v. Huerfano Medical Center, supra. Windom v. Lawrence Construction Co., W.C. No. 4-487-966 (November 1, 2002). However, as an affirmative defense, the application of the termination statutes is waived unless specifically pleaded. See Kersting v. Industrial Commission, 39 Colo. App. 297, 567 P.2d 394 (1977).
The employer did not file a response to the claimant’s application for hearing, which, of course, does not mention the defense established by the termination statutes. Nor does any pleading subsequently filed prior to the hearing raise that affirmative defense. The ALJ ordered a status conference to be held prior to the hearing, at which the claimant’s attorney apparently appeared and at which no one appeared on behalf of the employer. Tr. at 3. Apparently no Case Information Sheet was prepared and filed by the employer and the one filed by the claimant merely indicates that temporary total disability benefits are at issue, with no mention of the termination statutes. Finally, the employer did not raise the termination statutes during the discussion of the issues at the commencement of the hearing. Indeed, the sole mention of the issue was by the ALJ when he asked the claimant’s attorney whether he had a position on that question: “[I]t
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sounds like this Employer is saying that Claimant is responsible for his termination of employment because he voluntarily resigned. Do you have a position on that allegation?” The claimant’s attorney responded that the termination statutes constituted an affirmative defense that had not previously been raised. Tr. at 19. Although the ALJ responded to the claimant’s objection that “it’s being raised now,” Tr. at 19, in our view that was not sufficient to provide notice to the claimant that that issue would be adjudicated. In fact, when the ALJ then immediately summarized the issues to be litigated at the hearing he included the general issue of whether the claimant was “entitled” to temporary total disability benefits, without mentioning the affirmative defense of the termination statutes. In addressing that issue in his order, the ALJ effectively raised a new issue without adequate notice, over an objection, and thereby deprived the claimant of due process. See Shaw v. Valdez, 819 F.2d 965 (10th Cir. 1987) (parties are entitled to advance notice of the factual and legal issues which may be considered at the hearing). Nor do we perceive any basis in the record suggesting that trial of the issue was waived by the claimant or was otherwise tried by consent. As noted, the claimant objected to the issue on the ground that it had not been previously raised and that objection was not expressly overruled. See Robbolino v. Fisher-White Contractors, Inc., 738 P.2d 70
(Colo.App. 1987). Under these circumstances, it was error for the ALJ to adjudicate the application of the termination statutes and to deny temporary total disability benefits based on an affirmative defense not properly endorsed.
Because the ALJ’s factual findings that the claimant was temporarily disabled from performing his regular job are supported by the evidence, an award of temporary total disability benefits is compelled by the ALJ’s order. As we read the order, the ALJ concluded that the claimant was entitled to temporary total disability benefits absent the operation of the termination statutes. Therefore, on remand the ALJ shall conduct such further proceedings as are necessary to determine the amount and period of those benefits and any collateral issues such as the posting of the statutory bond by the employer.
Because of our resolution of this issue, it is unnecessary for us to address the claimant’s contention that the ALJ’s denial of temporary total disability benefits based on the termination statutes is unsupported by the factual record.
IT IS THEREFORE ORDERED that the ALJ’s order dated October 12, 2006, is reversed insofar as it denies temporary total disability benefits.
IT IS FURTHER ORDERED that the matter is remanded for further proceedings necessary to determine the amount and period of the temporary total disability benefits owed to the claimant and for such other proceedings as are necessary.
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INDUSTRIAL CLAIM APPEALS PANEL
_____________________Curt Kriksciun
_____________________Thomas Schrant
Brandon R. Duarte, CO, Battlement Mesa Outfitters, Kimball Creek Road Collbran, CO, Griff Larson Laiche Brennan Luke A. Brennan, Esq., Grand Junction, CO, (For Claimant)