W.C. No. 4-119-289Industrial Claim Appeals Office.
August 11, 1995
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Friend (ALJ) which denied and dismissed her claim for temporary total disability benefits commencing December 7, 1993. We affirm.
The ALJ made extensive findings of fact which may be summarized as follows. The claimant sustained a back injury on May 3, 1990, during her employment as a catering manager for the respondent-employer (Hyatt). The claimant returned to her regular job duties after the injury, and in July 1991, the claimant sought and received a promotion to a more physically demanding job as a banquet manager. In February 1992, the claimant resigned to accept a “better paying job” with the Colorado Society of CPA’s (CPA’s), and “for personal reasons unrelated to her job or injury.” At the time of the resignation the claimant remained physically capable of performing her job as banquet manager “to the expectation of her employer.”
With regard to medical restrictions which were imposed as a result of the industrial injury, no restrictions were reported to Hyatt. Furthermore, Hyatt has a light duty policy and “would have accommodated the claimant” with a light duty job, had it been aware of the claimant’s need for modified work. Hyatt also has work currently available within the claimant’s medical restrictions, and is willing to reemploy the claimant if reemployment were requested by the claimant. However, the claimant has not sought reemployment with Hyatt.
The claimant worked for the CPA’s from March 1992 until she voluntarily quit in May 1993. She then took a few months off of work. In August 1993 the claimant began working at the West America Mortgage Company (West America). The claimant took a leave of absence from December 4, 1993 through March 4, 1994, and ultimately resigned from West America on or about March 7, 1994. The claimant’s job duties for West America met the claimant’s medical restrictions.
The claimant performed several part time temporary jobs out of her home during the leave of absence. Further, although the claimant requested the leave of absence to devote “all of her time and attention” to treatment of the 1990 injury, the claimant did not attend prescribed physical therapy until four months after the initial referral, and thereafter, attended irregularly. In any case, the physical therapy would not have interfered with the claimant’s ability to continue working at West America.
In February 1993 Dr. Shogun released the claimant to regular employment without restrictions, and in August 1993, Dr. Shogun reported that the claimant’s condition was “essentially unchanged.” As of December 4, 1993, no physician, including Dr. Rook, reported that the claimant was temporarily disabled. Furthermore, Dr. Rook did not make any such report between December and March 1993. Consequently, Dr. Rook’s subsequent correspondence, dated, July 8, 1994, which indicates that the claimant had been disabled since December 1993, was not found persuasive.
Based upon these findings the ALJ determined that the claimant is “at fault” for the termination of her employment at Hyatt and with her most recent employer. The ALJ also determined that the claimant has done “little or nothing to look for a full time position since December 1993.” Consequently, the ALJ determined that the claimant’s unemployment during and following December 1993, is not the result of the industrial injury, but rather the result of the claimant’s “lack of a reasonable job search, and her voluntary decision to quit,” and therefore, denied the disputed temporary disability benefits.
The claimant first challenges the ALJ’s finding that the claimant is “at fault” for the loss of her employment on grounds that the finding is not supported by the medical evidence. We reject this argument.
A claimant may be determined to be “at fault” for an employment separation if there is substantial evidence that the claimant “performed some volitional act or otherwise exercised a degree of control over the circumstances resulting in the termination.” Padilla v. Digital Equipment Corp., 908 P.2d 1185 (Colo.App. 1994). Logic dictates that substantial evidence of a volitional act by the claimant is not limited to medical evidence. See Savio House v. Dennis, 665 P.2d 141 (Colo.App. 1983). Furthermore, the application of the substantial evidence test requires that we defer to the ALJ’s credibility determinations, his assessment of the weight and sufficiency of the evidence, and plausible inferences the ALJ drew from conflicts in the evidence. Monfort Inc. v. Rangel, 867 P.2d 122 (Colo.App. 1993).
We have reviewed the record, and conclude that the ALJ’s findings of fact are consistent with the evidence the ALJ found persuasive, and that evidence constitutes substantial support for the ALJ’s determination of fault. Moreover, the fact that the record contains evidence which, if credited, might support a contrary result is immaterial on review. Cary v. Chevron U.S.A., Inc.867 P.2d 117 (Colo.App. 1993). Therefore, we must uphold the ALJ’s determination that the claimant’s separations from employment were not causally related to the industrial injury. Section 8-43-301(8), C.R.S. (1994 Cum. Supp.); General Cable Co. v. Industrial Claim Appeals Office, 878 P.2d 118 (Colo.App. 1994).
Next, the claimant challenges the ALJ’s determination that the claimant failed to engage in a “reasonable job search.” The claimant argues that the Colorado Workers’ Compensation Act does not create an affirmative duty on the party of a temporarily disabled claimant to seek out work within her restrictions. In support, the claimant cites Denny’s Restaurant v. Husson, 746 P.2d 63 (Colo.App. 1987). Under these circumstances, we disagree with the claimant.
To recover temporary disability benefits, the claimant bears the burden to prove a causal connection between the work-related injury and his subsequent wage loss . Section 8-42-103(1)(a), C.R.S. (1994 Cum. Supp.) Seifried v. Industrial Commission, 736 P.2d 1262 (Colo.App. 1986) Eisnach v. Industrial Commission, 633 P.2d 502 (Colo.App. 1981). As i Denny’s Restaurant v. Husson, supra, the causal connection is inherent where the work-related injury precludes the claimant from performing his regular employment and no modified employment is offered. Similarly, the causal connection is unaffected if modified employment is offered and the claimant is not at fault for the loss of that employment. PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Sup.Ct. 1995). Accordingly, the Colorado courts have held that a temporarily disabled worker’s entitlement to temporary disability benefits is not dependent on the worker’s willingness to search for alternate modified employment following the loss of modified employment through no fault of the worker Schlage Lock v. Lahr, 870 P.2d 615 (Colo.App. 1993); Lunsford v. Sawatsky, 780 P.2d 76 (Colo.App. 1989); Denny’s Restaurant v. Husson supra.
However, this claim does not involve the loss of modified employment through no fault of the claimant. Rather, the ALJ found that the claimant was “at fault” for the employment separation. Therefore, unlike the circumstances in Denny’s this claim is governed by the second part of the Supreme Court’s holding in PDM Molding Inc. Stanberg, supra. The Supreme Court held in PDM that to establish a causal connection between the industrial injury and the claimant’s wage loss, where the claimant is determined to be at fault for the employment separation out of which the injury arose, the claimant has the burden to prove that the industrial injury contributes “to some degree” to the claimant’s loss of wages.
The determination of whether the claimant has been unable to find work at his pre-injury wage, and within his medical restrictions permits consideration of what employment the claimant may have sought, been offered, and has rejected. It follows that, in the case of a claimant who is determined to be at fault for the termination of the employment out of which the injury occurred, the claimant’s effort to obtain alternate employment is pertinent to the claimant’s entitlement to temporary disability. Consequently, the ALJ did not err insofar as he considered the claimant’s failure to seek employment, and especially the claimant’s failure to request reemployment at the Hyatt, in determining that the industrial injury did not contribute to the claimant’s wage loss after December 7, 1993.
We also note that the provisions of § 8-42-105(3)(a)-(d), C.R.S. (1994 Cum. Supp.) only apply to injuries which occur on or after July 1, 1991, and thus, are not applicable to this 1990 injury. See Martinez v. Regional Transportation District, 832 P.2d 1060 (Colo.App. 1992). Consequently, Hyatt was not required to comply with § 8-42-105(3)(d), which requires that offers of modified employment be made in writing.
The claimant’s remaining arguments have been considered and are unpersuasive.
IT IS THEREFORE ORDERED that the ALJ’s order dated November 2, 1994, 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 iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO80203, by filing a petition for review with the court, with service of acopy of the petition upon the Industrial Claim Appeals Office and allother parties, within twenty (20) days after the date this Order ismailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1994 Cum.Supp.).
Copies of this decision were mailed August 11, 1995 to the following parties:
Becky Ell Duncan, 706 Aspen Dr., Woodland Park, Colorado Springs, CO 80863
Hyatt Regency — Tech Center, Attn: Jay Fluent, Benefits Manager, 7800 E. Tuffs Ave., Denver, CO 80237
Crawford Co., Attn: Kristin Boeke, 700 S. Yosemite St., Ste. 150, Englewood, CO 80112-2016
James A. May, Esq., 155 S. Madison, 330, Denver, CO 80203
(For the Claimant)
Karen Treece Peterson, Esq., 400 S. Colorado Blvd., Ste. 700, Denver, CO 80222
(For the Respondents)
BY: _______________________