W.C. No. 4-2020-433Industrial Claim Appeals Office.
April 4, 1996
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Friend (ALJ) which awarded temporary total disability benefits commencing May 2, 1995. We affirm.
The claimant suffered a disabling injury in 1993 arising out of her work as a custodian for Porter Industries, Inc. (employer). Following the injury, the claimant returned to modified job duties with the employer in Denver, Colorado. The claimant again became temporarily and totally disabled in February 1995.
On April 12, 1995, the claimant was released return to modified employment. Pursuant to § 8-42-105(3)(d), C.R.S. (1995 Cum. Supp.), the respondents made a written offer of modified employment, commencing April 14, 1995, in Louisville, Colorado. The hearing officer found that the claimant declined the offer of modified employment due to a lack of transportation to Louisville. He further found that on May 2, 1995, the claimant’s employment was terminated because of her failure to report to work in Louisville.
The ALJ determined that the claimant’s temporary total disability benefits terminated on April 14, 1995, pursuant to § 8-42-105(3)(d). However, relying upon PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995), the ALJ awarded temporary total disability benefits commencing May 2, 1995.
On appeal the respondents essentially contend that the ALJ properly terminated the claimant’s benefits on April 14, 1995, and that the termination of benefits in accordance with § 8-42-105(3)(d) precluded the claimant from receiving benefits subsequent to her separation from employment. We disagree.
Section 8-42-105(3)(d) provides that temporary total disability benefits terminate if the claimant is released to modified employment and the claimant fails to begin such employment after a written offer by the employer. However, § 8-42-105(3)(d) does not operate as a permanent bar to temporary disability benefits. Medina v. Cobe Laboratories, W.C. Nos. 4-161-616 4-188-940, March 5, 1996. For example, the employer may eliminate modified employment or the claimant may suffer a worsening of condition which renders her physically unable to perform the modified employment duties offered by the employer. Under such circumstances, §8-42-105(3)(d) would not bar the claimant from an award of further temporary disability benefits. See El Paso County Department of Social Services v. Donn, 865 P.2d 877 (Colo.App. 1993).
Here, the ALJ found that because the claimant’s employment was terminated on May 2, the offer of modified employment was withdrawn at that time. Therefore, we perceive no error in the ALJ’s conclusion that temporary benefits were no longer barred under § 8-42-105(3)(d).
PDM Molding, Inc., v. Stanberg, supra, stands for the proposition that a disabled worker who is terminated from modified employment may receive temporary disability benefits in connection with the subsequent wage loss. Notwithstanding the respondents’ arguments, we agree with the ALJ that PDM
supports the award of benefits in this claim.
As argued by the respondents, the claimant must prove a causal connection between the industrial injury and the wage loss to sustain her burden of proof for an award of temporary disability benefits. Section 8-42-103(1), C.R.S. (1995 Cum. Supp.); Lindner Chevrolet v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 95CA0438, November 9, 1995). PDM Molding, Inc. v. Stanberg, supra. sets forth the procedure for determining whether the claimant has sustained her burden of proof, where the claimant “suffers a work-related injury and is subsequently terminated from the employment during which the injury occurs.” In PDM the Supreme Court stated that under such circumstances, there must an “initial determination” concerning whether the “termination was for fault.”
Here, the ALJ found that the claimant resided in Northglenn and traveled by bus to her job assignments in Denver. The ALJ also found that there was no bus service available between Northglenn and Louisville during the late evening hours the claimant was required to report for work in Louisville, and that the claimant was unable to arrange other transportation. Therefore, the ALJ determined that the claimant was not “at fault” for her employment separation on May 2, 1995. Because the ALJ’s findings are supported by substantial evidence in the claimant’s testimony, the findings are binding on review. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.); General Cable Co. v. Industrial Claim Appeals Office, 878 P.2d 118 (Colo.App. 1994 ).
Moreover, the ALJ’s finding that the claimant had no transportation to Louisville, together with the undisputed fact that the claimant was physically unable to perform the duties of her regular employment as of May 2, 1995, supports a conclusion that the claimant established a causal connection between the industrial injury and her post-employment separation wage loss. Therefore, we need not consider the ALJ’s determination that the claimant established a causal connection even if she was at fault for the employment separation.
In considering the “fault” issue, the respondents remind us of our prior conclusion that the “reasonableness” of the claimant’s failure to report for modified employment is not a pertinent consideration to the termination of benefits under § 8-42-105(3)(d). Paige v. Navajo Shippers, Inc., W.C. No. 4-202-467, June 19, 1995, aff’d Paige v. Navajo Shippers, Inc., Colo. App. No. 95CA1168, April 4, 1996 (not selected for publication). However, the award of benefits is not premised on the claimant’s refusal of the offer of modified work. That issue was rendered moot by the subsequent termination of the claimant’s employment, and the withdrawal of the offer. Rather, the issue is the claimant’s entitlement to temporary disability benefits in connection with her post-employment termination wage loss, which requires a threshold determination of “fault.” PDM Molding, Inc. v. Stanberg, Inc., supra.
The claimant is deemed to be at fault if she performed a “volitional act” or “otherwise exercised a degree of control over the circumstances resulting the termination.” Padilla v. Digital Equipment Corp. 902 P.2d 414 (Colo.App. 1994). Furthermore, the “fault” issue must resolved by consideration of all the pertinent circumstances. Padilla v. Digital equipment Corp., supra. Therefore, in determining whether the claimant was “at fault” for the employment separation, the ALJ did not err in considering the reasons the claimant failed to report for work in Louisville.
PDM further provides that once a causal connection between the industrial injury and the temporary wage loss is established, temporary disability benefits continue until the occurrence of one of the events listed in § 8-42-105(3)(d). As illustrated, in PDM the claimant was fired on the day of the industrial injury. Thereafter, the claimant’s treating physician imposed medical restriction which precluded the claimant from performing his regular employment. Although the Supreme Court noted the evidence that the employer had light duty work available, the court determined that this evidence was not dispositive in view of the employer’s failure to make a written offer of modified employment. Thus, where the employer relies upon § 8-42-105(3)(d) to limit liability for post-employment separation temporary disability benefits, the issue is not whether the employer offered modified employment prior to the employment termination but, whether the employer offered modified after the termination. See also Ferguson v. Industrial Claim Appeals Office, (Colo.App. No. 95CA0167, July 6, 1995) (not selected for publication) [after claimant establishes that work restrictions preclude her from obtaining employment subsequent to resignation, burden of proof shifts to the employer to establish one of events in § 8-42-105(3)(a)-(d)].
Here, the ALJ found that the employer’s offer of modified employment was withdrawn as a result of the termination of the claimant’s employment on May 2, 1995. Furthermore, there is no assertion or finding that the employer made a subsequent written offer of modified employment. Under these circumstances, the respondents have failed to establish that the award of temporary disability benefits commencing May 2, 1995, terminated under § 8-42-105(3)(d).
IT IS THEREFORE ORDERED that the ALJ’s order dated October 16, 1995, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Bill Whitacre
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, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1995 Cum. Supp.).
Copies of this decision were mailed April 4, 1996 to the following parties:
Theresa L. Sanchez, 300 E. Russell Blvd., Bldg. B #5, Thornton, CO 80229
Porter Industries, Inc., 418 E. 4th St., Loveland, CO 80537-5637
Colorado Compensation Insurance Authority, Attn: C. Kriksciun, Esq. (Interagency Mail)
Douglas A. Thomas, Esq., 1700 Broadway, Ste. 1700, Denver, CO 80290-1701 (For the Respondents)
Richard T. Goold, Esq., 1017 S. Gaylord St., Denver, CO 80209 (For the Claimant)
BY: _______________________