W.C. No. 4-544-396.Industrial Claim Appeals Office.
June 26, 2003.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Felter (ALJ) which denied and dismissed the claim for temporary total disability (TTD) benefits after the claimant was separated from employment. The claimant argues that some of the ALJ’s findings of fact are not supported by the evidence. Further, the claimant argues his conduct was not “volitional.” Therefore, he reasons he was not “responsible” for the loss of employment within the meaning of §8-42-103(1)(g), C.R.S. 2002, and § 8-42-105(4), C.R.S. 2002 (collectively the termination statutes). We affirm.
The ALJ’s findings may be summarized as follows. The claimant sustained a compensable arm injury on March 14, 2002, and was restricted to lifting no more than 5 pounds. The employer (All American) provided modified work in the employer’s tool shed. On May 2, 2002, the claimant’s restrictions were increased to no use of the right upper extremity. After the modification, the claimant was no longer required to fill out forms as he had previously. (Finding of Fact 6).
The claimant’s restrictions were increased for the second time on June 3, 2002. On this occasion the existing restrictions were continued and the claimant was prohibited from driving. Nevertheless, the claimant was able to continue the modified employment because he was not required to drive as part of his duties.
On or about June 3 the claimant advised All American’s human resources manager (Shafer) that the driving restriction presented a problem because he could not drive from his home in Greeley to the employer’s plant in Milliken, Colorado (a distance which the claimant testified was approximately 10 miles). (Tr. P. 71). Shafer advised the claimant that it was his responsibility to find transportation, but All American would assist the claimant in finding a ride to work. A number of All American’s employees also lived in Greeley.
However, the claimant refused the offer of assistance unless the employer agreed to provide evidence of the driver’s insurance and driving record. The claimant did not return to work on June 3 after the discussion with Shafer, nor did he return to work or call on June 4 and June 5, 2002. The claimant was then terminated by All American under its attendance policy.
Under these circumstances, the ALJ concluded the claimant was “responsible” for the separation from employment within the meaning of the termination statutes. In support, the ALJ found that continuing work was available within the claimant’s restrictions, but the claimant engaged in a “volitional act” by failing to return to work in accordance with All American’s attendance policy. The ALJ rejected the claimant’s argument that the modified employment was not “reasonable” because the claimant was unable to drive to work. The ALJ cited McKinley v. Bronco Billy’s, 903 P.2d 1239 (Colo.App. 1995), for the proposition that travel to and from work “is outside the course of employment.”
I.
On review, the claimant challenges certain findings of fact entered by the ALJ. We consider each of these findings in turn.
The ALJ’s findings of fact must be upheld if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2002. This standard of review requires that we defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411
(Colo.App. 1995). The ALJ is under no obligation to credit testimony even if the testimony is uncontradicted. Levy v. Everson Plumbing, 171 Colo. 468, 468 P.2d 34 (1970); Cary v. Chevron U.S.A., 867 P.2d 117
(Colo.App. 1993). Further, the ALJ is not held to a standard of absolute clarity in expressing findings of fact so long as the basis of the order is apparent from the findings which are entered. Magnetic Engineering, Inc., v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000).
The claimant challenges Finding of Fact 6, in which the ALJ found that after the May 2 imposition of the restriction against any use of the right hand, the claimant no longer filled out order forms. It is true the claimant testified that his restrictions were violated after the May 2 change of restrictions. (Tr. P. 61). However, after Shafer specifically directed him to obey the restrictions the claimant testified he no longer filled out forms. (Tr. P. 70). We understand the ALJ to have determined that even if there was some deviation from the restrictions, the employer exercised good faith in requiring adherence to the restrictions and the claimant did so after the discussion with Shafer. Thus, we perceive no error in Finding of Fact 6. In any event, we do not view this finding as critical to the ultimate issue of whether the claimant was responsible for the separation, and at most it would constitute harmless error.
Contrary to the claimant’s other argument, Dr. Bussey’s restriction of May 2 did not require part-time work. (See Claimant’s Exhibit 2).
The claimant challenges Finding of Fact 8. However, this finding is fully supported by the testimony of witness Rosenberg. (Tr. P. 39).
The claimant disputes Findings of Fact 9 because, he alleges, it ignores his “unrebutted testimony” that his brother could not drive the claimant home from work. However, the ALJ struck the claimant’s testimony concerning statements made to the claimant by the claimant’s brother. (Tr. P. 54). In any event, the ALJ was not required to credit the claimant’s testimony that he could not obtain a ride home from work. This is especially true since there was evidence that a number of All American employees resided in Greeley where the claimant lived.
In Finding of Fact 10 the ALJ found the claimant refused All American’s proffered assistance in locating transportation “unless the employer would provide a copy of the individuals [sic] driving record and proof of their insurance.” This finding constitutes a plausible inference drawn from Shafer’s testimony. (Tr. Pp. 22-23, 34). The fact that the claimant’s testimony might support a contrary finding and inference affords no basis for relief on appeal.
II.
The claimant next contends the ALJ’s finding that he was responsible for the termination of employment is not supported by the evidence and is contrary to law. The claimant argues he was not responsible for the termination because the employer did not provide transportation to and from work after the imposition of the driving restriction. The claimant also argues he was not responsible because he did not receive a written offer of modified employment after the alteration of his restrictions in June 2002. We perceive no error.
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 attributed to the on-the-job injury.” The concept of responsibility reintroduces the concept of “fault” as it was used in termination cases prior to PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995). See Longmont Toyota v. Industrial Claim Appeals Office, __ P.3d __ (Colo.App. No. 02CA0441, February 13, 2003) Colorado Springs Disposal v. Industrial Claim Appeals Office, 58 P.3d 1061
(Colo.App. 2002). Hence the issue is whether the claimant engaged in volitional conduct which was the cause of the termination. Conduct is volitional if the claimant exercised some degree of control over the circumstances leading to the termination in light of the totality of the circumstances. See Padilla v. Digital Equipment Corp., 902 P.2d 414
(Colo.App. 1994); Aguilar v. Matrix Logistic, Inc., W.C. No. 4-473-075
(December 5, 2002).
The question of whether the claimant’s conduct was volitional is, in most cases, a factual determination for resolution by the ALJ. Aguilar v. Matrix Logistic, Inc., supra. As noted above, the ALJ’s factual findings must be upheld if supported by substantial evidence.
The claimant asserts he was promised transportation to work after imposition of the driving restriction, but the employer failed to provide transportation. Therefore, the claimant reasons he was not responsible for the termination.
Contrary to the claimant’s argument, the ALJ did not find the claimant was promised transportation to work. Rather, the ALJ found that All American offered assistance to the claimant, and the claimant refused to accept the offer by imposing conditions involving proof of insurance and an adequate driving record. (Finding of Fact 10). Further, there was evidence that a number of employees lived in Greeley, and the claimant would have found transportation had he accepted the employer’s offer of assistance. Under these circumstances, the evidence supports the ALJ’s inference that the claimant acted volitionally by abandoning his job rather than returning to work.
Neither do we agree with the claimant that the ALJ improperly relied o McKinley v. Bronco Billy’s, supra. That case holds that, as a general matter, travel to and from work falls outside the parameters of Workers’ Compensation Act, and restrictions on such travel do not automatically entitle the claimant to refuse available work and collect TTD benefits unless the employer provides alternative transportation. Althoug McKinley was decided under the specific provisions of § 8-42-105(3)(c), C.R.S. 2002 (cessation of TTD benefits when the attending physician releases the claimant to regular employment), the decision provides guidance concerning the meaning of “responsibility” for termination when the issue involves a restriction on the claimant’s ability to travel to post-injury modified employment.
It is true, as the claimant notes, that we have held in the context of § 8-42-105(3)(d)(1), C.R.S. 2002 (cessation of TTD benefits based on claimant’s failure to begin modified employment after written offer), that the employment offered must be reasonably available to the claimant under an objective standard. The rationale for these decisions is that the General Assembly could not have intended a termination of TTD benefits based on an offer of employment which the claimant cannot as a practical matter accept. See Simington v. Assured Transportation Delivery, W.C. No. 4-318-208 (March 19, 1998).
Here, however, the ALJ implicitly concluded the claimant, with the employer’s assistance, was capable of finding transportation to work. Thus, this is not a case in which the employer was offering modified employment which the claimant could not practically accept. Hence, the record supports the finding the claimant was responsible for the termination.
The claimant also argues that because he did not receive a written offer of employment, as mandated by § 8-42-105(3)(d)(I), he is not responsible for the separation. However, the denial of benefits was based on the termination statutes, not § 8-42- 105(3)(d)(I). As noted, “responsibility” for a termination is based on the concept of volitional conduct under all the circumstances. The termination statutes do not require that the employer provide the claimant a written offer of employment prior to a termination if the claimant is “at fault” for the termination.
Moreover, if a claimant accepts an offer of modified employment by beginning work, § 8-42-105(3)(d)(I) ceases to be the controlling statute with respect to the claimant’s right to subsequent TTD benefits. The statute does not impose an ongoing duty to perform, “but rather refers to a failure to start the modified employment in the first instance.” Liberty Heights at Northgate v. Industrial Claim Appeals Office, 30 P.3d 872, 874 (Colo.App. 2001).
Here, the claimant accepted modified employment from the time of the March 2002 accident, and continued performing the modified job until the time he stopped working in June 2002. Thus, this is not a case controlled by § 8-42-105(3)(d)(I) and the corresponding requirement of a written offer of modified employment. To the contrary, the claimant already held modified employment, and the ALJ properly applied the termination statutes to determine whether the loss of that employment disqualified the claimant from receiving further TTD benefits. Colorado Springs Disposal v. Industrial Claim Appeals Office, supra (term “employment” as used in termination statutes is not ambiguous and refers to both modified and regular employment).
It follows that All American’s failure to make a written offer of modified employment after the change in restrictions does not preclude a finding the claimant was responsible for the termination. Here, there was ample evidence to support the ALJ’s determination that the claimant knew continuing work was available within his restrictions, but elected to end his employment by abandoning the job. (Finding of Fact 11).
Finally, relying on People in Interest of J.R.T., 55 P.3d 217
(Colo.App. 2002), the claimant argues that he cannot be responsible for the termination because he was involuntarily discharged and did not “voluntarily” separate from his employment. J.R.T. concerns the definition of a parent who is “voluntarily unemployed” or “underemployed” for the purpose of a statute imputing income in child support cases. The court held that a parent was not voluntarily underemployed simply because the parent lost a job for misconduct. The court reasoned a person who is terminated for misconduct has not chosen to become underemployed.
Whatever the merits of the J.R.T. decision, it interpreted a statute requiring “voluntary” unemployment or underemployment. In contrast the termination statutes use the term “responsibility” for termination. Therefore, J.R.T. is not on point and does not alter our conclusions. Moreover, as discussed above, the term “responsibility” for termination has been interpreted in published opinions of the Court of Appeals, and we choose to follow the line of authority which is most directly on point. Colorado Springs Disposal v. Industrial Claim Appeals Office supra.
IT IS THEREFORE ORDERED that the ALJ’s order dated December 27, 2002, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Bill Whitacre
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 Street, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed June 26, 2003 to the following parties:
John Ellis, 3306 W. 24th St., Greeley, CO 80634
Annette Shafer, All American Home of Colorado, Inc., P. O. Box 390, Milliken CO 80543
Coachman Industries, Inc., c/o GAB Robins North America, Inc., P. O. Box 370750, Denver, CO 80237-0750
William F. Garcia, Esq., 912 8th Ave., Greeley, CO 80631 (For Claimant)
Karen Gail Treece, Esq., 999 18th St., #1600, Denver, CO 80202 (For Respondents)
By: A. Hurtado