W.C. No. 4-590-561.Industrial Claim Appeals Office.
April 27, 2005.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Mattoon (ALJ) which awarded temporary total disability (TTD) benefits “after April 29, 2004.” The respondents contend the ALJ erred in finding the claimant was not responsible for a termination from employment within the meaning of § 8-42-103(1)(g), C.R.S. 2004, and § 8-42-105(4), C.R.S. 2004 (termination statutes). We affirm.
The ALJ’s findings may be summarized as follows. The claimant, a truck driver, suffered serious injuries to his right hand on August 26, 2003. The treating physician imposed restrictions which prohibited the claimant from driving. However, the employer provided modified work performing clerical duties.
On January 19, 2004, the employer sent the claimant home because there was no work to be done within the claimant’s restrictions. The claimant was not told when work would be available, but the human resources manager told him to check in every week to see if any work would be provided. The claimant checked in after January 19, but no work was available. On March 31, 2004, the claimant moved to Georgia. The ALJ found the move “was within the claimant’s control,” and made it impossible for the claimant to perform modified work if any had been offered.
On April 29, 2004, the claimant’s treating physician in Georgia released him to regular duty. However, restrictions were reimposed on May 20, 2004.
In the interim, on May 11, 2004, the employer wrote to the claimant and advised him that it still considered the claimant an “active employee.” The letter requested the claimant to advise the employer whether he was willing to “resume employment,” and stated the employer would put the claimant back to work if the claimant’s restrictions would permit. Finally, the letter stated that if the claimant did not reply the employer would assume the claimant had voluntarily resigned. The claimant did not respond to the letter and the employer terminated him at “some unknown date.” The ALJ found the letter was not an “offer of modified employment.”
Under these circumstances the ALJ determined the claimant is entitled to TTD benefits commencing May 20, 2004, when the restrictions were reimposed. Specifically, the ALJ found that by May 20 the claimant was temporarily disabled within the meaning of § 8-42-105(1), C.R.S. 2004, and was entitled to TTD benefits because the claimant had no duty to “mitigate” the respondents’ “damages” by remaining in Colorado pending an offer of work from the employer. Under these circumstances, the ALJ concluded the claimant was not “responsible” for the termination, and that none of the disqualifying circumstances listed in § 8-42-105(3), C.R.S. 2004, including an offer of modified employment, had occurred.
On review, the respondents contend the ALJ’s findings compel the conclusion that the claimant was “responsible” for the termination from employment because he intentionally moved to Georgia and rendered himself unavailable for potential employment. We disagree with this argument.
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.” In Colorado Springs Disposal v. Industrial Claim Appeals Office, 58 P.3d 1061 (Colo.App. 2002), the court held that the term responsible “appears to introduce into the Act the limited concept of `fault’ used in termination cases before the supreme court’s decision in” PDM Molding Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995). Under this standard, the fault determination depends on whether the claimant performed some volitional act or otherwise exercised a degree of control over the circumstances resulting in the termination. See Padilla v. Digital Equipment Corp., 902 P.2d 414, 416 (Colo.App. 1994), opinion after remand, 908 P.2d 1185 (Colo.App. 1995). In most circumstances the fault determination is one of fact for resolution by the ALJ. Windom v. Lawrence Construction Co., W.C. No. 4-487-966 (November 1, 2002).
We have previously held that a claimant is not “responsible” for quitting employment if he is physically unable to perform the functions of the job offered by the employer. The rationale for these decisions is that the purpose of TTD benefits is to compensate for temporary wage loss caused by injury-related disability, and to hold a claimant responsible for quitting employment beyond his injury-related restrictions would be inconsistent with the fundamental tenets of the Act. Indeed, if the claimant establishes the injury caused disability, and the claimant left work as a result of the disability, the right to temporary disability benefits is measured by the degree of the wage loss, not the claimant’s willingness to search for employment. Black Roofing, Inc. v. Industrial Claim Appeals Office, 967 P.2d 195 (Colo.App. 1998); White-Skunk v. QK, Inc., W.C. No. 4-500-149 (October 3, 2002); Bonney v. Pueblo Youth Service Bureau, W.C. No. 4-485-720 (April 24, 2002).
We also note the legislative purpose underlying the termination statutes is to “address situations where an injured worker returns to modified employment voluntarily or is terminated for cause and, as a result, suffers wage loss.” However, the statute is not designed to “freeze the job market” by “penalizing employees for seeking to improve their job situation by working for another employer, moving out of town, or shortening their work hours because of family considerations.”Anderson v. Longmont Toyota, Inc., 102 P.3d 323, 331 (Colo. 2004).
Because the issue of “fault” is factual we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2004. This standard of review requires us to consider the evidence in a light most favorable to the prevailing party and defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003).
Here, the ALJ found on substantial evidence that by January 19 the claimant was entitled to TTD benefits because the employer had no work within the claimant’s restrictions, and thereafter the employer never offered any work within the claimant’s restrictions. In these circumstances the ALJ could, and implicitly did find that the claimant was terminated for lack of work, a circumstance which was beyond his control and not the result of any volitional conduct. We are unpersuaded that the ALJ was required to find, as a matter of law, that the claimant’s action in moving to Georgia was the cause of the termination, particularly where the ALJ credited the claimant’s testimony that he called the employer from the date he was sent home in January to the date he moved, but no work was available. (Finding of Fact 5, Tr. P. 10). Neither was the ALJ required to find, as a matter of fact, that the claimant had any contractual obligation to remain in Colorado so that the employer could offer employment if it chose to do so. While the evidence might have supported a different result, that fact affords no basis for relief on appeal. Wilson v. Industrial Claim Appeals Office, supra.
IT IS THEREFORE ORDERED that the ALJ’s order dated October 22, 2004, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________ David Cain
____________________ Kathy E. Dean
George Quinn, Eatonton, GA, Pioneer Sand Company, Colorado Springs, CO, William A. Alexander, Jr., Esq., Colorado Springs, CO (For Claimant).
Brandee DeFalco Galvin, Esq., Pinnacol Assurance — Interagency Mail (For Respondents).