W.C. No. 4-440-444Industrial Claim Appeals Office.
January 27, 2003
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Mattoon (ALJ) which awarded temporary total disability benefits. The respondents contend the ALJ erred in determining the claimant was not responsible for a termination from 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.
This matter is before us for the second time. Our Order of Remand dated August 29, 2002, contains a statement of the facts in this case, and that statement is incorporated in this order.
In the order after remand the ALJ found the claimant was discharged from her modified employment as a unit secretary on March 15, 2000, and the discharge was based on the claimant’s absences from employment between January 1, 2000 and March 15, 2000. In this regard, the ALJ found the employer’s attendance policy treats absences as “unexcused” even if the employee calls in before the shift and notifies the employer that the employee is unable to work because of illness. The ALJ further found that after receiving an attendance warning in January 2000, the claimant missed one day because of back pain caused by the injury and four days because of illness involving the flu or bronchitis.
Under these circumstances, the ALJ concluded the claimant’s illnesses were beyond the claimant’s control, and were not the result of volitional conduct. Therefore, the ALJ concluded the claimant was not “responsible” for the separation within the meaning of the termination statutes, and awarded the claimant temporary total disability benefits after the separation.
I.
On review, the respondents first contend the ALJ erred in concluding the claimant “met her burden of proving her wage loss subsequent to the termination was the result of the industrial injury.” The respondents argue that because the claimant was terminated, at least in part, because of illness unrelated to the industrial injury, the post-separation wage loss was not caused by the industrial injury. Further, the respondents argue the claimant is not entitled to temporary disability benefits because she failed to show she was unable to perform the same type of modified work after the discharge. 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 attributable to the on-the-job injury.” A temporarily disabled employee is one who establishes that the physical effects of the injury preclude the claimant from performing the regular duties of employment, and consequently the claimant sustains a wage loss. Once the claimant meets the initial burden of proof to establish temporary disability, the burden shifts to the respondents to establish the statutory circumstances justifying termination of temporary disability benefits. See PDM Molding Inc., v. Stanberg, 898 P.2d 542
(Colo. 1995); Colorado Compensation Insurance Authority v. Industrial Claim Appeals Office, 18 P.3d 790 (Colo.App. 2000).
Here, the ALJ found the restrictions against lifting precluded the claimant from performing her regular employment as an LPN. As a result the claimant was provided modified employment as a unit secretary and her earnings were reduced. Consequently, the claimant was awarded temporary partial disability benefits while working as a unit secretary. (Finding of Fact 2 and Respondents’ Exhibit A).
It follows the claimant established her initial right to temporary disability benefits. Thereafter, the amount of such benefits was to be measured by the extent of the wage loss, not the claimant’s willingness to seek employment. Black Roofing Inc. v. Industrial Claim Appeals Office, 967 P.2d 195 (Colo.App. 1998). To the extent the respondents wished to terminate or reduce the temporary benefits, they had the burden of proof to establish the claimant was “responsible” for the separation within the meaning of the termination statutes. Because the respondents failed to carry this burden, the wage loss after the termination continued to “result” from the injury, not the claimant’s conduct. Cf. Horton v. Industrial Claim Appeals Office, 942 P.2d 1209 (Colo.App. 1997). The ALJ did not err in attributing the claimant’s wage loss to the injury because the respondents did not prove an intervening cause of the wage loss which would justify termination of benefits under any provision of the statute.
II.
The respondents next contend the evidence is contrary to the ALJ’s finding that the claimant was not responsible for the separation. The respondents argue that a claimant is responsible for a termination if discharged for illness unrelated to the industrial injury, as was the case here. The respondents also argue the great weight of the evidence shows the claimant engaged in volitional conduct which caused the separation. We are not persuaded.
In Colorado Springs Disposal v. Industrial Claim Appeals Office, 58 P.3d 1061 (Colo.App. 2002), the court held the term “responsible” introduces into the Act the concept of “fault” which, at a minimum, requires a volitional act. Thus, a claimant is responsible for a termination of employment if she performs a volitional act or exercises some degree of control over the circumstances leading to the termination. See Gonzales v. Industrial Commission, 740 P.2d 999 (Colo. 1987); Gutierrez v. Exempla Healthcare, Inc., W.C. No. 4-495-227 (June 24, 2002).
Further, the question of whether the claimant engaged in volitional conduct is a question of fact for determination by the ALJ. Gutierrez v. Exempla Healthcare, Inc., supra. Consequently, we must uphold the ALJ’s finding 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. Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251
(Colo.App. 1999).
The respondents’ assertion notwithstanding, where an illness not caused by the industrial injury results in an absence from work, the absence need not be viewed as the result of volitional conduct. See Mountain States Telephone and Telegraph Co. v. Industrial Commission, 637 P.2d 401
(Colo.App. 1981). The ALJ plausibly found that the claimant’s absences in the year 2000 were caused by illnesses, and consequent inability to work, over which she had no control. Indeed, this was the entire tenor of the claimant’s testimony. Therefore, because the employer terminated the claimant for these absences, the claimant was not at fault for the loss of the job and not “responsible” within the meaning of the termination statutes. The fact that the employer considered the claimant to be responsible under its policy is not dispositive. Gonzales v. Industrial Commission, supra.
Moreover, the fact the claimant did not produce “medical excuses” is not dispositive. First, the employer did not purport to discharge the claimant for failure to produce physician statements. Rather, as the ALJ found, an absence is considered unexcused whether or not a physician’s statement is produced. Similarly, the employer did not terminate the claimant for failing to take a leave of absence or visit the treating physician.
Neither do we perceive any inherent conflict in the ALJ’s findings of fact. The ALJ determined the claimant’s absences before 2000 were caused by the industrial injury and resulted in the employer scrutinizing the claimant’s attendance. These absences caused the employer to warn the claimant about further attendance problems in January 2000. It was the additional absences in 2000 which led directly to the employer’s decision to discharge the claimant. The ALJ could logically infer that if the claimant had not been absent in 1999, the employer would not have warned the claimant, nor discharged her when additional absences occurred in 2000.
Insofar as the respondents make additional arguments, we find them to be without merit.
IT IS THEREFORE ORDERED that the ALJ’s order dated August 29, 2002, 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,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 mustserve a copy of the petition upon all other parties, including theIndustrial Claim Appeals Office, which may be served by mail at 1515Arapahoe Street, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed __January 27, 2003__ to the following parties:
Irene Jeppsen, 17 County Road, Walsenburg, CO 81089
Huerfano Medical Center, Mark Shelton, Human Resources, 23500 U.S. Highway 160, Walsenburg, CO 81089-9524
Colorado Hospital Association Trust for Workers’ Compensation, Sharon Thompson, P.O. Box 3513, Englewood, CO 80155-3513
James M. Anderson, Esq., 4905 N. Union Blvd., #302, Colorado Springs, CO 80918 (For Claimant)
Clyde E. Hook, Esq., Harvey D. Flewelling, Esq. and Gary L. Fleming, Esq., 5353 W. Dartmouth Ave., #400, Denver, CO 80227 (For Respondents)
By: _______A. Hurtado_______________