W.C. No. 4-542-353.Industrial Claim Appeals Office.
August 27, 2003.
FINAL ORDER
The claimant seeks review of a Supplemental Order of Administrative Law Judge Stuber (ALJ) which denied temporary disability benefits. We affirm.
In an order dated November 20, 2002, the ALJ found the claimant suffered compensable neck and back injuries on May 20, 2002. Consequently, the ALJ awarded medical benefits.
On the issue of temporary disability benefits, the ALJ determined that as a result of the injuries the claimant was medically restricted from performing his regular employment and the claimant left the employment as a result of the industrial disability. Therefore, the ALJ found the claimant established his entitlement to temporary disability benefits.
However, § 8-42-105(4) and identical language in §8-42-103(1)(g), C.R.S. 2002, provides that “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.” In Colorado Springs Disposal v. Industrial Claim Appeals Office, 58 P.3d 1061 (Colo.App. 2002), the court concluded §8-42-105(4) introduces into the Act a limited concept of “fault” which focuses on the reason or reasons for the termination of employment. A claimant is “responsible” if the claimant acted volitionally or exercised some control in light of the totality of the circumstances. Cf. Padilla v. Equipment Corp. 902 P.2d 414 (Colo.App. 1994).
Here, the ALJ found the employer discharged the claimant after two sexual harassment complaints were filed against the claimant by tenants of the apartment building where the claimant was employed as a maintenance supervisor. The ALJ found neither complaint was truthful. Nevertheless, the ALJ determined the claimant was “responsible” for the termination of employment because he violated the employer’s sexual harassment policy when he placed himself alone in an apartment with a female resident.
However, the ALJ found the claimant’s wage loss was due to the industrial injury not the termination from employment because the employer was unable to accommodate the medical restrictions imposed for the industrial injuries. Therefore, the ALJ ordered the respondents to pay temporary total disability benefits commencing June 17, 2002.
The respondents appealed the award of temporary total disability benefits. After the matter was briefed, the ALJ issued a Supplemental Order. The ALJ determined that in Longmont Toyota Inc., v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 02CA0441, February 13, 2003), the court held that in the context of § 8-42-105(4), the term “resulting” means:
“any wage loss following a termination for which the employee is responsible, and that, once the causative link between the industrial injury and wage loss is thereby severed, it cannot later be restored.
Consequently, we hold that § 8-42-105(4) is to be construed as a permanent bar to receipt of temporary disability benefits when a claimant is responsible for his or her separation from employment and the separation is for causes within the employee’s control, but unrelated to the industrial injury.”
Based upon his finding that the claimant was “responsible” for the termination of employment the ALJ further determined that Longmont Toyota compelled an order denying temporary disability benefits. The claimant timely appealed the Supplemental Order.
The claimant’s Petition to Review the Supplemental Order contains general allegations of error. See § 8-43-301(8), C.R.S. 2002. The claimant also contends the ALJ misconstrued Longmont Toyota Inc., v. Industrial Claim Appeals Office, supra, to be a permanent bar to temporary disability benefits. We disagree.
We note the claimant has not filed a brief in support of his Petition to Review the Supplemental Order. Consequently, the effectiveness of our review is limited. See Ortiz v. Industrial Commission, 734 P.2d 642
(Colo.App. 1986)
Under § 8-43-301(8), C.R.S. 2002, we are precluded from disturbing the ALJ’s order unless the ALJ’s findings of fact are insufficient to permit appellate review, the ALJ has not resolved conflicts in the evidence, the record does not support the ALJ’s findings, the findings do not support the order, or the order is not supported by the applicable law.
We have reviewed the record and the ALJ’s findings of fact. The ALJ’s findings are sufficient to permit appellate review, and the findings indicate that the ALJ resolved pertinent conflicts in the evidence based upon his credibility determinations. See Riddle v. Ampex Corp., 839 P.2d 489
(Colo.App. 1992). Further, there is substantial evidence in the transcript to support the ALJ’s findings, and the findings support the order.
Furthermore, the ALJ’s order denying temporary disability benefits is consistent with the applicable law. In a series of decisions beginning with Anderson v. Longmont Toyota Inc., W.C. No. 4-465-839 (February 13, 2002), and including Lovato v. Cathedral of Sacred Heart, W.C. No. 4-463-726
(May 13, 2002); Selvage v. Terrace Gardens, W.C. No. 4-486-812
(September 23, 2002); Taylor v. Backwood Video, W.C. No. 4-501-466
(January 16, 2003), and Krause v. Sorter Construction Inc.,
W.C. No. 4-525-245
(January 29, 2003), we concluded that the phrase “resulting wage loss” as used in § 8-42-105(4) refers to wage loss which is the consequence of the claimant’s volitional conduct that caused the termination of employment. We reasoned that because the statute does not define the term “resulting,” the term is governed by its commonly accepted dictionary definition, which is the “consequence or outcome of an action.” Webster’s II New College Dictionary (1995); White v. Industrial Claim Appeals Office, 8 P.3d 621 (Colo.App. 2000). Further, we reasoned that if the General Assembly intended to create a permanent bar to temporary disability benefits, the legislature would have enacted language which stated that if the claimant is responsible for termination of employment no subsequent wage loss shall be attributable to the on-the-job injury.
However, in Longmont Toyota Inc., v. Industrial Claim Appeals Office, supra, the court rejected our reasoning. The court held that in the context of § 8-42-105(4) the term “resulting” is ambiguous because the term may encompass both direct and indirect consequences of the termination. Slip op. p. 4. However, the Longmont Toyota court concluded that the legislative intent of § 8-42-105(4) is to “completely cut off temporary benefits whenever an injured work is responsible for the separation from the employment.” Consequently, the court held that the term resulting means “any wage loss following a termination” for which the claimant is responsible, and that the statute is a “permanent bar” to the receipt of temporary disability benefits. Slip op. p. 7. Further, the only exceptions mentioned by the court occur when the claimant’s disability is the result of a “work-related aggravation of the old injury or a new injury.” Slip op. 7.
Accordingly, we reject the claimant’s contention that the ALJ misconstrued the holding in Longmont Toyota. Furthermore, we and the ALJ are bound by published decisions of the Court of Appeals unless modified or reversed by the Supreme Court. C.A.R. 35(f).
Here, there is no finding or allegation that the facts fit one of the exceptions discussed by the court in Longmont Toyota. Therefore, until that is the case, we agree with the ALJ’s determination that Longmont Toyota operates as a permanent bar to the claimant’s receipt of temporary disability benefits in this claim.
IT IS THEREFORE ORDERED that the ALJ’s Supplemental Order dated March 25, 2003, 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 is commenced 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 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 decision were mailed August 27, 2003 to the following parties:
Lloyd K. Rupe, c/o Barkley D. Heuser, Esq., 625 N. Cascade, #300, Colorado Springs, CO 80903
LMC Resources, Inc./Griffis Blessing, 102 N. Cascade Ave., Colorado Springs, CO 80903-1432
Brandee DeFalco Galvin, Esq., Pinnacol Assurance — Interagency Mail
Barkley D. Heuser, Esq., 625 N. Cascade, #300, Colorado Springs, CO 80903 (For Claimant)
Merrily S. Archer, Esq., 1625 Broadway, #2300, Denver, CO 80202 (For Respondents)
BY: A. Hurtado