W.C. No. 4-522-492Industrial Claim Appeals Office.
May 8, 2003
FINAL ORDER
The respondents seek review of an order of a Corrected Supplemental Order of Administrative Law Judge Jones (ALJ) which awarded temporary disability benefits. We affirm.
On November 15, 2001, the claimant suffered a work-related injury to his left foot. The claimant received emergency treatment at the Rose Medical Center, and was sent home with instructions to rest the foot for 2 days. Later that day, the employer contacted the claimant by telephone and instructed him to report for drug testing. The claimant did not appear for drug testing that day and the employer never renewed the request. The employer subsequently discharged the claimant from employment for failure to submit to drug testing.
The ALJ found the claimant was incapacitated by the industrial injury on November 15, 2001. Therefore, the ALJ determined the claimant was physically unable to travel to the site designated by the employer on November 15 for drug testing. Under these circumstances, the ALJ rejected the respondents’ argument that the claimant was “responsible” for the termination of employment and barred from receiving temporary disability benefits under § 8-42-105(4), C.R.S. 2002.
Based on the claimant’s earnings from August 1 to November 15, 2001, the ALJ also determined the claimant’s average weekly wage is $699.99. The Corrected Supplemental Order awarded temporary disability benefits from November 16, 2001 through January 18, 2002, when the claimant rejected alternate employment, and temporary partial disability benefits commencing January 19, 2002, less appropriate offsets and credits. The respondents timely appealed.
On review the respondents contest the award of temporary total and partial disability benefits and the determination of average weekly wage. In support, the Petition to Review contains general allegations of error. See § 8-43-301(8), C.R.S. 2002. However, the respondents have not filed a brief in support of the petition to review. Consequently, the effectiveness of our review is limited. Ortiz v. Industrial Commission, 734 P.2d 642 (Colo.App. 1986).
To receive temporary disability benefits a claimant must establish a causal connection between the industrial injury and the post-injury loss of wages. Section 8-42-103(1), C.R.S. 2002. Once established, benefits continue until the respondents prove grounds for termination of benefits. Burns v. Robinson Dairy, Inc., 911 P.2d 661 (Colo.App. 1995). Section 8-42-105(4) provides 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 a limited concept of “fault” which focuses on the reason or reasons for the termination of employment. A claimant is “responsible” if the claimant acted volitionally or exercised some control in light of the totality of the circumstances. The mere fact that an employer discharges the claimant in accordance with the employer’s policy does not establish that the claimant acted volitionally or exercised control over the circumstances of the termination. See Gonzales v. Industrial Commission, 740 P.2d 999 (Colo. 1987); Bonney v. Pueblo Youth Service Bureau, W.C. No. 4-485-720 (April 24, 2002) (claimant was not “responsible” for failure to comply with the employer’s absence policy if the claimant is not physically able to notify the employer).
Under § 8-43-301(8) we are precluded from disturbing the ALJ’s order unless the ALJ’s findings of fact are insufficient to permit appellate review, the ALJ has not resolved conflicts in the evidence, the record does not support the ALJ’s findings, the findings do not support the order, or the order is not supported by the applicable law.
We have reviewed the record and the ALJ’s findings of fact. The findings are sufficient to permit appellate review and indicate that the ALJ resolved conflicts in the evidence based upon her credibility determinations. See Riddle v. Ampex Corp., 839 P.2d 489 (Colo.App. 1992).
The ALJ’s findings which determine the claimant was not responsible for the termination of employment are supported by substantial evidence in the claimant’s testimony (Tr. pp. 21, 32, 41), and the Rose Medical Center Emergency Room report dated November 15, 2001. (Claimant’s Hearing Exhibit 20). Further, this finding supports the award of temporary disability benefits.
Similarly, there is substantial evidence to support the ALJ’s determination of average weekly wage. (See Tr. p. 43, Claimant Exhibit 21). Therefore, the respondents have failed to establish grounds which afford a basis to grant appellate relief.
IT IS THEREFORE ORDERED that the ALJ’s Corrected Supplemental Order dated January 21, 2003, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ 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, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed May 8, 2003 to the following parties:
Travis Fahey, P. O. Box 109, Lake George, CO 80827
Brede Exposition Services, 5140 Colorado Blvd., Denver, CO 80216-3120
Jennifer A. Thompson, Liberty Mutual Insurance Co., P.O. Box 3539, Englewood, CO 80155
Janice M. Greening, Esq., 400 Inverness Drive South, #200, Englewood, CO 80112-5817 (For Claimant)
Alanna R. Pozzi, Esq., 1120 Lincoln St., #1606, Denver, CO 80203 (For Respondents)
BY: A. Hurtado