W.C. No. 4-499-384Industrial Claim Appeals Office.
March 21, 2003
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Martinez (ALJ) which denied the claim for temporary total disability (TTD) benefits commencing June 4, 2001. The claimant argues the ALJ’s pertinent findings of fact are not supported by the evidence. We affirm.
The claimant sustained a compensable right shoulder injury in November 2000. The claimant underwent surgery in April 2001, and the treating physician released the claimant to modified work on May 2, 2001. The claimant was restricted to lifting no more than 2 pounds and precluded from repetitive overhead lifting. The employer provided modified employment answering a telephone in the fitting room.
The claimant alleged the employer required her to perform work in excess of the restrictions, and that her condition then worsened. Consequently, the claimant testified, she requested a leave of absence commencing June 4, 2001. The leave was to end September 1, 2001, but the claimant moved to South Carolina with her husband. The claimant testified the employer assured her prior to the move that she could transfer to one of the employer’s stores in South Carolina.
Resolving conflicts in the evidence and testimony, the ALJ found the employer did not require the claimant to work in excess of her restrictions, and the claimant was not disabled from performing the modified employment commencing June 4, 2001. Rather, the ALJ found the claimant took a personal leave to provide care for her daughter. The ALJ also found the claimant was responsible for the termination of her employment when she failed to return to work at the end of the leave of absence. The ALJ discredited the claimant’s evidence that the employer gave the claimant assurances that she could transfer to a store in South Carolina. Instead, the ALJ found the claimant quit her employment to move with her husband who had found a better job in South Carolina.
On review, the claimant disputes the sufficiency of the evidence to support the ALJ’s findings that she was not disabled commencing June 4, and that she was responsible for the termination of employment commencing September 1. We find no error.
The claimant’s right to TTD terminated on May 2, 2001, when she returned to modified employment within her restrictions. Section 8-42-105(3)(b), C.R.S. 2002. It is true that if the claimant’s condition subsequently worsened and she was no longer able to perform the modified employment, she could reestablish the causal relationship between the injury and the wage loss. See City of Colorado Springs v. Industrial Claim Appeals Office, 954 P.2d 637 (Colo.App. 1997). However, the questions of whether the claimant’s condition worsened, and whether she became disabled from performing the duties of the modified employment, were questions of fact for the ALJ. Lymburn v. Symbios Logic, 952 P.2d 831
(Colo.App. 1997); Stineman v. La Villa Grande Care Center,
W.C. No. 3-106-730 (December 18, 1998).
Because these issues are factual in nature, we must uphold the ALJ’s pertinent findings of fact if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2002. This standard of review requires us to defer to the ALJ’s credibility determinations, resolution of conflicts in the evidence, and plausible inferences drawn from the record. Metro Moving Storage Co. v. Industrial Claim Appeals Office, 914 P.2d 411 (Colo.App. 1995).
The claimant’s assertions notwithstanding, the record contains substantial evidence to support the ALJ’s determination that the employer provided work within the claimant’s restrictions, and that the claimant’s condition did not sufficiently worsen so as to disable the claimant from performing the modified employment. The employer’s witness testified the employer did not require the claimant to perform work outside the restrictions, and the ALJ discredited the claimant’s contrary testimony. Further, the claimant’s testimony that she became disabled and took a leave of absence for that reason was contradicted by the testimony of the employer’s witness, the absence of medical evidence tending to support the claimant’s assertion, and the leave of absence document itself. The ALJ was not required to credit the claimant’s evidence, and the mere existence of conflicting evidence is no basis for interfering with the order on appeal.
Further, substantial, albeit conflicting, evidence supports the finding the claimant was responsible for the termination of employment within the meaning of § 8-42-103(1)(g), C.R.S. 2002, and § 8-42-105(4), C.R.S. 2002 (termination statutes). The word “responsible,” as used in the termination statutes, reintroduces the concept of “fault” as used in cases before PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995) Colorado Spring Disposal v. Industrial Claim Appeals Office, 58 P.3d 1061
(Colo.App. 2002). Thus, the issue is whether the claimant engaged in volitional conduct or exercised some control over the circumstances leading to the termination. Resolution of the question is one of fact for the ALJ. See Gonzales v. Industrial Commission, 740 P.2d 999 (Colo. 1987); Gutierrez v. Exempla Healthcare, Inc., W.C. No. 4-495-227 (June 24, 2002).
The respondents’ witness testified, contrary to the claimant’s evidence, that there was no meeting in which the claimant was assured she could transfer to a store in South Carolina. The ALJ credited this evidence. Further, the ALJ credited evidence tending to prove the claimant moved to South Carolina because she wished to remain with her husband who found a better job there. Thus, the evidence supports the ALJ’s conclusion the claimant engaged in volitional conduct rendering her responsible for the separation.
IT IS THEREFORE ORDERED that the ALJ’s order dated August 19, 2002, 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 iscommenced 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 mustserve a copy of the petition upon all other parties, including theIndustrial Claim Appeals Office, which may be served by mail at 1515Arapahoe Street, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed March 21, 2003 to the following parties:
Robyn Snodgrass, 100 Calhoun St., Johnston, S.C. 29832
Wal-Mart, 16750 S. Townsend Ave., Montrose, CO 81401
American Home Assurance Co., c/o Claims Management, Inc., P. O. Box 1288, Bentonville, AR 72712-1288
Joanna C. Jensen, Esq., 225 N. 5th St., #1010, P. O. Box 4859, Grand Junction, CO 81502 (For Claimant)
James R. Clifton, Esq., and Harvey D. Flewelling, Esq., 5353 W. Dartmouth Ave., #400, Denver, CO 80227 (For Respondents)
By: A. Hurtado