W.C. No. 4-689-381.Industrial Claim Appeals Office.
August 24 2007.
ORDER OF REMAND
The claimant and respondents both seek review of an order of Administrative Law Judge Harr (ALJ) mailed on March 5, 2007, that permitted the respondents to suspend the claimant’s temporary total disability benefits and that ordered them to pay temporary partial disability benefits. We set the order aside and remand for entry of a new order.
A hearing was held on the issues of whether the claimant was responsible for the termination of her employment and whether the respondents were entitled to terminate the claimant’s temporary total disability benefits as of August 23, 2006. Following the hearing the ALJ entered factual findings that for purposes of this order may be summarized as follows. On October 29, 2005, the claimant sustained an admitted injury to her shoulder while working at the respondent employer’s retail dry goods and grocery business. At the time of the injury the claimant held concurrent employment with RAC Transport, Inc. (RAC), answering telephones as a customer service representative. The claimant was treated by Dr. Kohake, who imposed physical restrictions that the employer accommodated with modified work pursuant to its program of providing “temporary alternative duty.” The claimant continued working at the modified job, performing various temporary duties, until December 17, 2005, when her manager gave her a written offer for another temporary position, which the claimant declined to accept. On December 23rd the employer sent the claimant a certified letter offering her a temporary position within her physical restrictions and directing her to report for work on December 25th. The position offered work for five days. The claimant did not report for work as instructed and her employment was terminated on December 29, 2005, on the ground that
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she violated the employer’s policy requiring employees to notify the employer in advance of impending absences.
Although the claimant vacationed in Mexico during the Christmas season of 2005, and she obtained authorization for leave from RAC, she did not obtain permission to take time off from the respondent employer. The ALJ found that the claimant was aware of the employer’s policy and knew that she could be discharged for failing to notify the employer that she would be absent for more than three days. The ALJ concluded that she was responsible for the termination of her employment. On August 8, 2006, the claimant underwent surgery on her right shoulder, and her condition worsened as a result. The insurer filed a general admission of liability admitting for temporary total disability as of August 8, 2006. On August 23rd a nurse released the claimant to return to work with the restriction that she not use her right arm, and on September 5, 2006, she was released to work with limited use of her right arm. On September 14th she was released to perform all duties as tolerated. The employer had temporary work available within the claimant’s physical restrictions and would have provided that work. The ALJ thus found that the claimant’s wage loss after August 23rd was attributable to her termination from employment. Although the claimant took off time from her work at RAC, the ALJ found that the corresponding wage loss was not attributable to the injury.
Based upon his factual findings, the ALJ determined that under our decision in Fantin v. King Soopers, W.C. No. 4-465-221 (February15, 2007) the claimant was entitled to temporary partial disability benefits. In Fantin we upheld an ALJ’s order that denied a petition to terminated temporary total disability benefits where the claimant’s condition worsened after a voluntary or for-cause termination, and where temporary total disability benefits were reinstated to comply with the court’s holding in Anderson v. Longmont Toyota Inc., 102 P.3d 323 (Colo. 2004). We held such benefits must continue until one of the conditions in § 8-42-105(3)(a)-(d), C.R.S. 2006 was met. Therefore in the present case the ALJ reasoned that under Fantin the insurer was liable for temporary partial disability benefits until one of the two factors under § 8-42-106(2)(a)-(b), C.R.S. 2006 was met. The ALJ granted the respondents’ petition to suspend the claimant’s temporary total disability benefits as of August 28, 2006 because the claimant had returned to work at RAC. The ALJ further ordered the insurer to pay temporary partial disability benefits based upon her loss of earnings from the employer from August 29, 2006, until the first occurrence of one of the factors under § 8-42-106(2)(a)-(b). Both the claimant and the respondents appealed the ALJ’s order.
I.
On appeal the claimant contends that the ALJ erred in finding the claimant was responsible for the termination of her employment and allowing the respondents to
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terminate her temporary total disability benefits. The claimant argues the respondents did not comply with the provisions of W. C. Rule of Procedure 6-1, 7 Code Colo. Reg. 1101-3 at 21 regarding written offers of modified employment.
The claimant contends that under Rule 6-1 she had three days to respond to the offer of modified employment. Based on her own testimony about when she received the respondents’ offer, the claimant asserts that she had until December 29, 2005 to respond to the offer, but was terminated on that date. We preliminarily note that the ALJ found with record support that the claimant’s testimony was not credible on this point and in such circumstances the ALJ’s credibility determinations are binding. Arenas v. Industrial Claim Appeals Office, 8 P.3d. 558 (Colo.App. 2000). The claimant also argues that the offer of employment did not have attached a statement from an authorized treating physician and, also, that she was not provided a copy of the written inquiry to the treating physician as required under Rule 6-1. Therefore the claimant contends the ALJ erred in finding she was responsible for the termination.
The respondents assert that the claimant did not raise before the ALJ her argument that the offer of employment did not comply with Rule 6-1 See Johnson v. Industrial Commission, 761 P.2d 1140 (Colo. 1988) Robbolino v. Fischer-White Contractors, 738 P.2d 70 (Colo.App. 1987) Colorado Compensation Ins. Authority v. Industrial Claim Appeals Office, 884 P.2d 1131 (Colo.App. 1994). However, the record includes the claimant’s written objection to a rehearing and request to submit a position statement, in which the claimant discusses Rule 6-1.
In any event, the respondents did not terminate temporary disability benefits without a hearing on the basis of Rule 6-1, which deals with an offer of modified employment. The respondents requested a hearing and sought to terminate the claimant’s temporary disability benefits on the basis that the claimant was responsible for the termination of her employment pursuant to the statute. Sections 8-42-105(4) and 8-42-103(1)(g), C.R.S. 2006 contain identical language stating that in cases “where it is determined that a temporarily disabled employee is responsible for termination of employment the resulting wage loss shall not be attributable to the on-the-job injury.” The respondents’ compliance with Rule 6-1 is in our view not material.
As we read the ALJ’s order the employer terminated the claimant effective December 29, 2005, for violating the 3-shift no-call/no-show policy and because the claimant provided no reliable explanation for failing to contact the employer prior to December 27th. The claimant instead testified that within one week of December 26th (January 2nd) she sent back to the employer the written job offer, signed by her indicating she accepted the modified position, but when confronted with the document signed by her
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on January 9, 2006, the claimant changed her testimony. Findings of Fact, Conclusions of Law, and Order at 4, ¶ 11. The claimant does not appear to question these findings, which are supported by the record. Exhibit A at 1; Tr. 17-18, 58, 70.
The question of whether the claimant was terminated for fault is ordinarily one of fact for the ALJ. Padilla v. Digital Equipment Corp., 902 P.2d 414 (Colo.App. 1995), opinion after remand, 908 P.2d 1185 (Colo.App. 1985); Knepfler v. Kenton Manor, W.C. No. 4-557-781
(March 17, 2004). Accordingly, we must uphold the ALJ’s findings if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2006; City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). This standard of review requires us to view the evidence in the light most favorable to the prevailing party, and to accept the ALJ’s resolution of conflicts in the evidence as well as plausible inferences which he drew from the evidence. Industrial Commission v. Royal Indemnity Co., 124 Colo. 210, 236 P.2d 293 (1951); Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). The determination of fault must be based upon an examination of the totality of circumstances. Padilla v. Digital Equipment Corp. supra. As noted above there is record support for the ALJ’s determination that the claimant was at fault and under these circumstances we perceive no basis on which to interfere with the ALJ’s finding. We decline to disturb the order based on the claimant’s petition to review.
II.
The respondents contend that the ALJ misapplied the law by ruling on the basis that terminating temporary partial disability benefits is governed by § 8-42-106(2). The respondents point out that under §8-42-106(2)(a)-(b) temporary partial disability benefits terminate only when the claimant reaches MMI or refuses an offer of modified employment. In contrast there are four circumstances under which entitlement to temporary total disability terminates pursuant to statute. Section 8-42-105(3)(a)-(d). Temporary total disability benefits shall continue until the first occurrence of any one of the following: (1) The employee reaches maximum medical improvement; (2) The employee returns to regular or modified employment; (3) The attending physician gives the employee a written release to return to regular employment; or (4) The attending physician gives the employee a written release to return to modified employment, such employment is offered to the employee in writing, and the employee fails to begin such employment. The respondents argue that the ALJ incorrectly construed § 8-42-106(2) as requiring payment of temporary partial disability benefits in a situation where, had the claimant been totally disabled, indemnity benefits would not be payable. We agree.
We have read the term “disability,” as used in § 8-42-106, as contemplating that the “continuance” of a “temporary partial disability” ends when the attending physician
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releases the claimant to regular employment. Nogueda v. Varsity, W. C. No. 4-209-382 (January 21, 1998). It therefore follows that we disagree with the ALJ’s conclusion that the insurer is liable to pay the claimant temporary total disability benefits until the first occurrence of one of the two factors under §§ 8-42-106 ((a) when the claimant reaches maximum medical improvement or under (b) the attending physician gives the employee a written release to return to modified employment, such employment is offered to the employee in writing, and the employee fails to begin such employment).
Moreover, we do not view as harmless the ALJ’s error in excluding as one of the bases for the termination of temporary partial disability the release to return to regular employment. Cf. Baldwin Construction, Inc., v. Industrial Claim Appeals Office, 937 P.2d 895 (Colo.App. 1997) (it is proper to affirm order which reaches correct result for wrong reason); A R Concrete Construction v. Lightner, 759 P.2d 831
(Colo.App. 1988).
Here, the ALJ’s found that Dr. Alijani released the claimant to perform all activities as tolerated. The question of whether the attending physician has released the claimant to regular employment is factual in nature. Popke v. Industrial Claim Appeals Office, 944 P.2d 677 (Colo.App. 1997). However, the ALJ did not resolve whether this constituted a release to regular employment and we cannot say that the record compels a specific interpretation of this medical evidence. Therefore, it cannot be determined how the ALJ might have weighed the evidence concerning Dr. Alijani’s release to all activities as tolerated had he not erroneously excluded as one of the bases for the termination of temporary partial disability the release to return to regular employment.
Section 8-43-301(8) authorizes the Panel to correct, set aside or remand an ALJ’s order if the findings are insufficient to permit appellate review, conflicts in the evidence are not resolved, the findings are not supported by the record, the findings do not support the order, or the order is not supported by applicable law. Evidentiary determinations are, by and large, left to the trier of fact. See Pizza Hut v. Industrial Claim Appeals Office, 18 P.3d 867, 870 (Colo.App. 2001) (ALJ’s sole prerogative to draw inferences from conflicting evidence), citing Gelco Courier v. Industrial Commission, 702 P.2d 295
(Colo.App. 1985).
We conclude that the ALJ’s findings of fact are insufficient to permit a resolution of whether the claimant had been released to return to regular employment. Therefore, we must remand the matter for additional findings of fact. Section 8-43-301(8); Riddle v. Ampex Corp., 839 P.2d 489 (Colo.App. 1992).
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IT IS THEREFORE ORDERED that the ALJ’s order mailed on March 5, 2007, is set aside and the matter is remanded for entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________________ John D. Baird
________________________________________ Thomas Schrant
AMERICAN HOME ASSURANCE, Attn: LEA ANN GAVELLAS, BENTONVILLE, AR, (Insurer).
NATHAN M. BERGER, ESQ., COMMERCE CITY, CO, (For Claimant).
CLIFTON, MUELLER BOVARNICK, P.C., Attn: RICHARD A. BOVARNICK, ESQ., DENVER, CO, (For Respondents).
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