W.C. No. 4-355-135Industrial Claim Appeals Office.
March 28, 2001
ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge Mattoon (ALJ) which denied her request for temporary disability benefits commencing January 7, 1998, the date her employment terminated. We set aside the order and remand for the entry of a new order.
On June 20, 1997, the claimant suffered an admitted injury while working as a cook for the employer. The claimant testified that she returned to her normal job, but had to get ” a lot of help” from her co-workers lifting, scrubbing and getting plates out on time. (Tr. p. 13). On January 6, 1998, the employer terminated the claimant’s employment for possessing alcohol while on duty. Thereafter the claimant began treating with Dr. Pero who diagnosed a myofascial pain syndrome, low back pain, impingement syndrome and right thoracic outlet syndrome. Dr. Pero referred the claimant to Dr. Sanders who performed thoracic outlet surgery on May 18, 1999. On October 19, 1999, the claimant underwent a right shoulder acromioclavicular joint resection, subacromial resection and right shoulder scope.
The ALJ found the claimant’s employment was terminated for “cause.” The ALJ also found the claimant failed to sustain her burden to prove that her subsequent unemployment was “to some degree” the result of the industrial injury. Therefore, the ALJ denied and dismissed the claim for temporary disability benefits.
On review the claimant contends, inter alia, that the ALJ’s findings of fact are insufficient to permit appellate review. We agree, and remand for additional findings. Section 8-43-301(8), C.R.S. 2000.
Initially, we note that the claimant’s Designation of Record includes the “entire files maintained by the Division of Workers’ Compensation and the Division of Administrative Hearings.” The record transmitted to us on appeal apparently does not include the complete Division of Workers’ Compensation file. However, our review is limited to the evidentiary record before the ALJ, and there is no evidence in the record which tends to suggest the claimant requested the ALJ to consider the entire Division of Workers’ Compensation file as part of the evidentiary record for the hearing. See City of Boulder v. Dinsmore, 902 P.2d 925
(Colo.App. 1995); Rules of Procedure, Part VIII(A)(7), 7 Code Colo. Reg. 1101-3 at 22. Consequently, we have not obtained or considered the Division of Workers’ Compensation file, but restricted our review to the record made at the hearing.
To receive temporary total disability benefits, the claimant must prove that the industrial injury caused a “disability” lasting more than three work shifts, and that the claimant left work as a result of the disability. Section 8-42-103, C.R.S. 2000; PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995) PDM holds that where a temporarily disabled worker is “subsequently terminated from the employment during which the injury occurs, an initial determination must be made as to whether the termination was for fault.” PDM Molding, Inc. v. Stanberg, 898 P.2d at 849. If the claimant is determined to be “at fault,” the termination severs the causal connection between the injury and the subsequent wage loss. The claimant is then precluded from receiving further temporary disability benefits unless she reestablishes the causal connection by proof that the injury contributed “to some degree” to the wage loss.
Under PDM a termination from post-injury employment is not an intervening event which severs the causal relationship between the injury and the wage loss unless the claimant is “at fault” for the termination. To be deemed at fault for the separation, the claimant must have performed some “volitional act” or otherwise exercised a degree of control over the circumstances resulting in the termination. Padilla v. Equipment Corp. 902 P.2d 414
(Colo.App. 1994). Because a finding of “fault” implies claimant exercised some control over the circumstances, a finding that the employer fired the claimant for “cause” does not resolve the pertinent issue. Rather, the critical determination is whether the claimant or the employer was responsible for the circumstances which led to the termination. In other words, did the claimant precipitate the termination by a volitional act which an employee would reasonably expect to result in the loss of employment.
Here, the employer terminated the claimant’s employment after the claimant and other kitchen employees were drinking alcohol at closing time. The uncontroverted evidence indicated it was customary for the management to serve drinks to the kitchen crew at closing time. (Tr. pp. 14, 69). In fact, the claimant’s former supervisor served the claimant the drink which precipitated the employment termination. That former supervisor stated that the General Manager of the restaurant authorized the supervisors to serve drinks to the kitchen crew during closing. (Tr. p. 73). Further, the claimant testified she and the other employees who were served a drink were told that they would not be fired for the incident. (Tr. p. 15). Consequently, the record contains evidence which, if credited, might support a finding that the claimant was not “at fault” for the “cause” of the termination because it did not result from a volitional act as that term is used here.
On remand the ALJ shall determine whether the claimant was “at fault” for the termination, and shall enter specific findings which articulate the factual basis and evidence she relied upon in reaching that determination. Based upon that determination the ALJ shall enter a new order concerning the claimant’s entitlement to temporary disability benefits.
The claimant also contends the ALJ’s findings are insufficient to determine the basis for the finding that the claimant failed to reestablish a causal connection between the industrial disability and the temporary loss of wages following the surgeries in May and October 1999. Because the issue may arise on remand, we shall address it now.
The ALJ found the claimant “did not present sufficient evidence” to prove that the industrial disability contributed to “some degree” to her wage loss after January 6, 1998. (Discussion and Conclusions of Law). However, we are unable to ascertain the evidentiary basis for the ALJ’s determination, especially in view of the evidence that the claimant underwent significant surgeries in May and October 1999.
The ALJ found the surgeries were required to treat compensable components of the industrial injury. Furthermore, there is evidence in the medical records which could support an inference that the claimant was temporarily disabled immediately after the surgeries. However, the sufficiency and probative weight of this evidence is a matter within the sole prerogative of the ALJ as the fact finder. See Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). If on remand, the ALJ finds the claimant was “at fault” for the loss of employment. The ALJ shall issue specific findings of fact which articulate the evidentiary basis for her determination that the claimant failed to sustain her burden to prove any causal connection between the industrial injury and the wage loss after January 6, 1998.
IT IS THEREFORE ORDERED that the ALJ’s order dated April 20, 2000, is set aside and the matter is remanded to the ALJ for the entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
Copies of this decision were mailed March 28, 2001 to the following parties:
Raylene Lerum, 1928 E. Monument St., Colorado Springs, CO 80909
Chi Chi’s Inc., Pam Moon, Gallagher Bassett Services Inc., P. O. Box 4068, Englewood, CO 80155-4068
National Union Fire Insurance, AIG Claim Services, P. O. Box 32130, Phoenix, AZ 85064
William C. Jolliffe, Esq., 105 E. Moreno Ave., P. O. Box 2940, Colorado Springs, CO 80901-2940 (For Claimant)
James B. Fairbanks, Esq., 999 18th St., #1600, Denver, CO 80202 (For Respondents)
BY: A. Pendroy