W.C. No. 4-457-362.Industrial Claim Appeals Office.
September 30, 2003.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Felter (ALJ) requiring them to pay temporary total disability benefits (TTD) commencing November 6, 2001. The respondents contend the ALJ erred in determining the claimant 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 (termination statutes). We affirm.
The pertinent facts are largely undisputed. The claimant, a mechanic, was employed on a seasonal basis to work in Antarctica. The claimant and the employer entered into a series of seven-month contracts under which the claimant agreed to work from August of one year until February of the following year. (Finding of Fact 4).
The claimant sustained an injury to his shoulder, neck, and upper extremity in December 1999. Despite sustaining the injury the claimant was able to complete the 1999 contract, as well as the 2000-2001 contract. In February 2001 the claimant believed he was unable to return to work as a mechanic because of continuing neck and arm problems. However, the claimant obtained work as a truck driver. The claimant stopped performing this job on November 6, 2001, when he felt he was no longer able to continue and the treating physician stated that claimant was unable to “work at regular duty.” (Finding of Fact 12, 17).
Under these circumstances, the ALJ concluded the claimant is entitled to TTD benefits commencing November 6, 2001, when he was no longer able to continue working and was sustaining a total wage loss. The ALJ rejected the respondents’ argument that the claimant was “responsible” for the “termination of employment” in February 2001 when the last seasonal employment contract was completed. The ALJ concluded the claimant did not perform any “volitional act” which caused the termination, and the claimant would have returned to work for the employer but for the effects of the industrial injury. (Findings of Fact 13, 16, Conclusion of Law d). Consequently, the ALJ concluded the respondents failed to prove the claimant was “responsible for his termination” from employment, and declined to deny the claim for TTD benefits under the termination statutes.
On review, the respondents contend the ALJ erred as a matter of fact and law in concluding the claimant was not “responsible” for the termination of employment in February 2001. The respondents argue the claimant voluntarily entered into a contract for a fixed term of employment, and he knew the employment would end in February 2001. Thus, the respondents reason the claimant engaged in a volitional act which led to his unemployment, and the respondents argue the claimant should be permanently barred from receiving TTD benefits under the authority o Longmont Toyota, Inc. v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 02CA0441, February 13, 2003). We perceive no error.
The termination statutes provide that “where it is determined that a temporarily disabled employee is responsible for termination of employment, the resulting wage law shall not be attributable to the on-the-job injury.” The concept of “responsibility” reintroduced to the Act the concept of “fault” as it was used in termination cases prior t PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995). See Longmont Toyota, Inc. v. Industrial Claim Appeals Office, supra; 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 exercises 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. Ellis v. All American Home of Colorado, Inc., W.C. No. 4-544-396 (June 26, 2003). Consequently, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2002. This standard of review requires us to defer to the ALJ’s credibility determinations, resolution of conflicts in the evidence, and plausible inferences drawn from the record. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002).
Moreover, the term “responsibility” should not be construed in a manner which is inconsistent with the overall scheme of the Act. Hence, i Colorado Springs Disposal v. Industrial Claim Appeals Office, supra, the court concluded that the term “responsible” does not refer to an employee’s injury or injury-producing activity. For this reason, we have concluded that a claimant is not responsible for loss of employment caused by physical limitations resulting from the compensable injury Bonney v. Pueblo Youth Service Bureau, W.C. No. 4-485-720 (April 24, 2002).
The respondents’ contention notwithstanding, both the evidence and the law support the ALJ’s conclusion that the respondents failed to prove the claimant’s “volitional” conduct was the cause of the “termination” of employment and consequent loss of wages. Considering the totality of the circumstances, the ALJ reasonably found the claimant and the employer engaged in a series of seven-month contracts, and the contract would have been renewed but for the intervening effects of the industrial injury. (Finding of Fact 13). This finding is supported by the claimant’s testimony that the employer indicated its willingness to enter into a new contract if the claimant could pass the pre-qualification physical. (Tr. Pp. 14-15). It follows the reason for the claimant’s termination was not his “voluntary” decision to become unemployed in February 2001, but the physical inability to accept the work when it again became available in accordance with the parties’ usual business practice.
Longmont Toyota, Inc. v. Industrial Claim Appeals Office, supra, does not, in our opinion, warrant a different result. In that case, the evidence established the claimant “voluntarily resigned . . . for reasons unrelated to the industrial injury.” Slip op. at 1. Thus, the court concluded the claimant engaged in the type of “voluntary conduct” which the termination statutes are designed to address. However, as the ALJ found, the facts in this case do not support the conclusion that the claimant became voluntarily unemployed. Rather, the evidence establishes that the parties agreed to seasonal employment memorialized by periodic contracts, and the claimant’s inability to return to work was the result of the injury.
Further, we agree with the ALJ that the respondents’ proposed interpretation of the word responsible “would bring about quite unreasonable, and unjust, results.” In Longmont Toyota, the court stated that the purpose of the termination statutes is to “resurrect” the law as it existed prior to the Supreme Court’s decision in PDM Molding. Th Longmont Toyota court also stated that under prior law if the claimant engaged in “voluntary conduct” causing the termination “a compensable injury was no longer recognized for purposes of temporary disability benefits.”
However, prior law also provided that the loss of seasonal employment did not automatically disqualify the claimant from receiving subsequent temporary disability benefits. Rather, the question of whether the claimant’s post-termination wage loss was caused by the injury was one of fact for determination by the ALJ. See City of Aurora v. Dortch, 799 P.2d 461 (Colo.App. 1990). Inherent in the Dortch decision is the court’s recognition that seasonal employment is a common fact of economic life, and that the conclusion of a particular period of seasonal employment should not automatically be viewed as the permanent end to the employment relationship or evidence of the claimant’s “voluntary” decision to become unemployed. Indeed, in many cases the end of seasonal employment is best viewed as resulting from the unavailability of further work, an economic factor for which the claimant is not at “fault.” In our opinion, it would be contrary to the underlying purpose of the statutory scheme to hold, as a matter of law, that termination of employment resulting from the conclusion of a contract for seasonal work automatically disqualifies the claimant from receiving subsequent TTD benefits. Cf. J.D. Lunsford v. Sawatsky, 780 P.2d 76 (Colo.App. 1989) (if claimant loses job because of economic factors and is not at fault for the termination, claimant is entitled to TTD benefits). The fact that the claimant knows the seasonal employment will end at a fixed point in time does not necessarily lead to the conclusion that he is responsible for the termination. City of Aurora v. Dortch, supra.
Of course, the result might be different if the ALJ were to find the claimant selected a fixed period of seasonal employment with the intent of the remaining unemployed throughout a portion of the year, or permanently. See El Paso County Department of Social Services v. Donn, 865 P.2d 877 (Colo.App. 1986). However, in this case the ALJ found the claimant returned to work after the end of the February 2001 contract. Thus, there was ample evidentiary basis for concluding the claimant intended to continue working despite the seasonal nature of his job with the employer.
To the extent the respondents make other arguments, we find them to be without merit.
IT IS THEREFORE ORDERED that the ALJ’s order dated June 2, 2003, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Robert M. Socolofsky
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, Colorado 80203, by filing a Petition to Review with the Court, within twenty (20) days after the date this Order was 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 order were mailed to the parties at the addresses shown below on September 30, 2003 by A. Hurtado.
James Judd, HC 34 Box 34120, Ely, NV 83901
Antarctic Support Services, P. O. Box 6240, Orange, CA 92863
ACE, c/o Marijoy Ganzon, ESIS, P. O. Box 5025, Fremont, CA 94537
Clifford E. Eley, Esq., 3515 S. Tamarac Dr., #200, Denver, CO 80237 (For Claimant)
Matthew C. Hailey, Esq., 999 18th St., #1600, Denver, CO 80202 (For Respondents)