W.C. No. 4-289-567Industrial Claim Appeals Office.
April 29, 1997
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Snider (ALJ), insofar as the ALJ denied his claim for temporary partial disability benefits. We affirm.
The claimant was employed as a service attendant for the respondent on October 16, 1995, when he was promoted to the position of heavy equipment operator. The promotion included a raise and required the claimant to complete a six month probationary period. If the claimant failed to perform at or above the “effective level” during the probationary period he could be returned to his prior position.
The ALJ found that the claimant’s performance during the probationary period was deficient in that the claimant was slow in reporting and being ready for work, and the claimant was unable to work on occasion because he did not wear his identification (ID) badge, which was required to enter secured areas. As a result, the claimant’s probationary period was extended to October 15, 1996. On February 2, 1996, the claimant again reported to work without his ID badge, and was warned that he would fail his probationary period if he had any further ID badge violations.
On March 12, 1996 the claimant entered the respondent’s premises without his ID badge, and reported a work-related injury to his upper extremities. As a result of the injury the claimant was medically restricted from performing his regular duties as a heavy equipment operator. Therefore, the claimant was assigned to light duty.
However, on April 25, 1996, the respondent notified the claimant that he was being returned to the position of service attendant due to ineffective performance during his extended probationary period. The change was made effective May 1, 1996, and as a result, the claimant’s wage was reduced to the rate of pay he received as a service attendant.
The ALJ determined that there was no causal connection between the industrial injury and the claimant’s temporary wage loss. Consequently, the ALJ denied and dismissed the claim for temporary partial disability benefits commencing May 1, 1996.
On review, the claimant contends that the ALJ erred in refusing to award temporary partial disability benefits commencing May 1, 1996. We disagree.
Under the applicable law, a claimant is entitled to temporary disability benefits if the industrial injury physically precludes the claimant from performing his regular employment, and the industrial disability results in a loss of wages. PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995). Furthermore, PDM holds that if the claimant is determined to be “at fault” for the loss of employment the claimant may not receive temporary disability benefits in connection with the subsequent wage loss unless the industrial injury contributed “to some degree” to the wage loss. In other words, the claimant is entitled to temporary disability benefits unless the industrial disability plays “no part” in the wage loss. Horton v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 96CA0284, November 29, 1996); Lindner Chevrolet v. Industrial Claim Appeals Office, 914 P.2d 496 (Colo.App. 1995), rev’d on other grounds, Askew v. Industrial Claim Appeals Office, 927 P.2d 1333
(Colo. 1996).
Contrary to the claimant’s argument, the PDM analysis is not limited to circumstances where the employment relationship is fully terminated Horton v. Industrial Claim Appeals Office supra; Sanchez v. Porter Industries, Inc. W.C. No. 4-208-433, April 4, 1996, aff’d Porter Industries, Inc. v. Sanchez (Colo.App. No. 96CA0745, December 27, 1996) (not selected for publication) [PDM applies whenever the employer seeks to terminate benefits under § 8-42-105(3)]. Rather, it also applies where, as here, the claimant loses a particular job assignment and experiences a wage reduction.
However, the claimant contends that he was not “at fault” for the loss of his job as heavy equipment operator, and that the industrial injury contributed to his subsequent wage loss. The ALJ found to the contrary, and we perceive no basis to interfere with those determinations.
The question of whether the claimant is “at fault” for the loss of employment is a factual issue for resolution by the ALJ. PDM Molding, Inc. v. Stanberg, supra; Lindner Chevrolet v. Industrial Claim Appeals Office, supra. Similarly, the issue of whether the industrial disability contributed to the claimant’s wage loss is dependent on the particular facts of the claim. PDM Molding, Inc. v. Stanberg, supra; Horton v. Industrial Claim Appeals Office, supra. Consequently, we are bound by the ALJ’s determinations if supported by substantial evidence in the record and the ALJ’s plausible inferences from the record. Section 8-43-301(8), C.R.S. (1996 Cum. Supp.); F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985).
The ALJ found that the claimant’s loss of employment as a heavy equipment operator and subsequent wage reduction were caused by the claimant’s voluntary conduct which constituted ineffective performance and resulted in a failure to successfully complete his probation period See (Finding of Fact 7; Conclusions of Law 3). The claimant’s arguments notwithstanding, the record amply supports the ALJ’s finding.
The claimant does not dispute the evidence that he entered the respondent’s premises without his ID badge on March 12, 1996, even though he was previously warned that the failure to do so would result in the loss of his employment as a heavy equipment operator. The ALJ could, and did, infer from this evidence that the claimant acted volitionally in failing to wear his ID badge on March 12. See Padilla v. Digital Equipment Corp. 902 P.2d 414 (Colo.App. 1994) (“fault” refers to a volitional act by the claimant or the claimant’s exercise of a degree of control over the circumstances resulting in the loss of employment). Moreover, this inference, supports a determination that the claimant was “at fault” for his loss of employment as a heavy equipment operator.
Similarly, there is substantial, albeit, conflicting evidence in the record to support the ALJ’s finding that the industrial injury played “no part” in the claimant’s reduced wage. Consequently, the ALJ did not err in denying the claim for temporary partial disability benefits. See Horton v. Industrial Claim Appeals Office, supra.
IT IS THEREFORE ORDERED that the ALJ’s order dated September 24, 1996, 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, CO 80203, by filing a petition for review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1996 Cum. Supp.).
Copies of this decision were mailed April 29, 1997 to the following parties:
Charles T. Folsom, 3204 Josephine St., Denver, CO 80205
City County of Denver, 1445 Cleveland Pl., Annex 1, Suite 200, Denver, CO 80202
Olivia L. Hudson Smith, Assistant City Attorney, 1445 Cleveland Place, Room 200, Denver, CO 80202
Jordan S. Levine, Esq., 3515 S. Tamarac Dr., Ste. 200, Denver, CO 80237 (For the Claimant)
By: _______________________________