W.C. No. 4-576-463.Industrial Claim Appeals Office.
May 11, 2004.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Jones (ALJ) which denied his claim for temporary disability benefits. We affirm.
The claimant suffered a compensable back injury on April 6, 2003, at a job site in Colorado. The claimant was examined by a physician’s assistant who released the claimant to return to modified work. The claimant returned to the worksite and was reminded to return to work the next day.
The claimant testified that he was in extreme pain the evening of April 6 and efforts to reduce his pain level were unsuccessful. Therefore, the claimant drove to his home in Wyoming to seek additional medical treatment. On April 7 the claimant obtained chiropractic treatment from Dr. Guild, who removed the claimant from all work.
The claimant he did not report to work on April 7. As a result, the employer terminated the claimant’s employment for job abandonment.
The ALJ found the claimant’s injury was the result of the claimant’s failure to follow a reasonable rule adopted by the employer for employees safety because the injury occurred as the claimant attempted to fit a pipe without using “rigging” equipment. The ALJ also found the claimant was responsible for termination of the employment and barred from receiving temporary disability benefits under § 8-42-103(1)(g), C.R.S. 2004. Therefore, the ALJ denied the request for temporary disability benefits.
On review the claimant contends the ALJ erroneously denied temporary disability benefits where, as here, the claimant is physically unable to report to work as a result of the industrial disability. We perceive no grounds to disturb the ALJ’s order.
To receive temporary disability benefits, a claimant must establish a causal connection between the industrial disability and the loss of wages. Section 8-42-103(1)(g) and identical language in § 8-42-105(4), C.R.S. 2003, provide 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 the termination statutes, the word “responsible” introduces the concept of “fault” which requires, at a minimum, a volitional act. Hence, the claimant is responsible for the termination of employment if the claimant exercises some control over the circumstances leading to the separation. See Colorado Springs Disposal v. Industrial Claim Appeals Office, 58 P.3d 1061
(Colo.App. 2002). The question of whether the claimant acted volitionally is ordinarily dictated by the factual circumstances found by the ALJ. Gutierrez v. Exempla Healthcare, Inc., Gonzales v. Industrial Commission, 740 P.2d 999 (Colo. 1987).
In Bonney v. Pueblo Youth Service Bureau, W.C. No. 4-485-720
(April 24, 2002), an ALJ found an industrial injury physically prevented a claimant from returning to her usual job, and as a result the claimant left the employment. In that case, we held a claimant is not “responsible” for quitting employment which the injury prevents the claimant from performing. See also Windom v. Lawrence Construction Co., W.C. No. 4-487-966 (November 1, 2002). This is true because the very purpose of temporary disability benefits is to compensate for a temporary loss of wages which occurs when the claimant is physically unable to perform the pre-injury employment. Schlage Lock v. Lahr, 870 P.2d 615 (Colo.App. 1993).
Here, unlike Bonney, the ALJ was not persuaded by the claimant’s testimony that the claimant was physically unable to perform modified employment on April 7. (Findings of Fact 4, 7). Consequently, this claim is factually distinguishable fro Bonney. Further, the ALJ credited evidence the employer had modified employment available within the claimant’s medical restrictions. Therefore, the findings support the conclusion that the claimant acted volitionally failing to return to work on April 7 and, thus, was responsible for the termination of employment.
Furthermore, in Longmont Toyota Inc., v. Industrial Claim Appeals Office, 85 P.3d 548 (Colo.App. 2003), cert. granted,
March 8, 2004 (03SC450), the court held that the termination statutes were enacted to “resurrect” former law and overrule PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995). As argued by the claimant, PDM stood for the proposition that a claimant found to be at fault for a termination of employment was not permanently barred from receiving temporary disability benefits if the subsequent wage loss was “to some degree” a consequence of the industrial injury. The former law, according to Longmont Toyota, was that “when a claimant’s voluntary conduct caused his or her termination and the injury played no part in the discharge, a compensable injury was no longer recognized for purposes of temporary disability benefits.” Ibid at 550. Under these circumstances, we need not consider the claimant’s arguments that he is entitled to temporary disability benefits under PDM.
Similarly, the claimant’s reliance on our conclusions i Selvage v. Terrace Gardens, W.C. No. 4-486-812 (September 23, 2002) is misplaced. We concluded in Selvage that the termination statutes only bar temporary disability benefits for wages lost as a direct result of the termination of employment where the claimant is found to be responsible for the termination. However, in Longmont Toyota the court rejected our reasoning. Instead, the court concluded that the termination statutes create a “permanent” and “complete” bar to the receipt of temporary disability benefits for “any wage loss” following a termination for which the claimant is responsible even where the claimant’s condition worsens after the employment termination Ibid at 551. Consequently, evidence Dr. Guild removed the claimant from all work on April 7 does not compel a contrary result. Moreover, the claimant’s disability does not fall within the exceptions mentioned in Longmont Toyota (not a bar where disability is the result of a “work-related aggravation of the old injury or a new injury.”) Ibid at 551.
We note that Longmont Toyota is pending certiorari review. However, we and the ALJ are bound by published decisions of the court. C.A.R. 25 (f). Therefore, the ALJ did not err in denying temporary disability benefits under § 8-42-105(4).
The claimant also contends the ALJ erroneously found he willfully violated a reasonable safety rule. We perceive no error.
Section 8-42-112(1)(b), C.R.S. 2003, permits a fifty percent reduction in compensation when an injury “results from the employee’s willful failure to obey any reasonable safety rule adopted by the employer for the safety of the employee.” It is the respondents’ burden to prove every element justifying a reduction in compensaton.
A violation is “willful” if the claimant knows of the rule and deliberately performs the forbidden conduct. There is no requirement that the respondent prove the claimant had the rule in mind and decided to break it. Stockdale v. Industrial Commission, 76 Colo. 494, 232 P. 669 (1925). Rather, willful conduct may be proven by circumstantial evidence including evidence of frequent warnings, the obviousness of the risk, and the extent of deliberation evidenced by the claimant’s conduct Bennett Properties Co. v. Industrial Commission, 165 Colo. 135, 437 P.2d 548 (1968).
The question of whether the respondents met their burden to prove a willful safety rule violation is generally one of fact for determination by the ALJ. Lori’s Family Dining, Inc. v. Industrial Claim Appeals Office, 907 P.2d 715 (Colo.App. 1995). Because the issue is factual in nature we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2003. This standard of review requires that we 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. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
The ALJ found and the claimant does not dispute that the employer had a safety rule which required the use of “rigging equipment” when attaching pipes to tanks. Nor does the claimant dispute that he thought about using rigging equipment just before the accident on April 6. Instead, the claimant argues that because the use of rigging equipment was discretionary, the record is insufficient as a matter of law to support the ALJ’s finding of a “willful” violation.
We have previously held that under some circumstances evidence the claimant possessed discretion to circumvent a safety rule might negate a finding of a “willful” safety rule violation Bauer v. CF I Steel L.P., W.C. No. 4-495-198 (October 20, 2003). Further, the exercise of poor judgment within the realm of the claimant’s legitimate discretion might well qualify as mere “negligence” sufficient to preclude a finding of willfulness. However, evidence that the claimant possessed some discretion does not automatically preclude the ALJ from finding a willful safety rule violation.
The ALJ explicitly credited the testimony of the respondents’ witnesses and rejected the claimant’s testimony to the contrary. (Finding of Fact 7). Under these circumstances, the ALJ implicitly found that the claimant’s decision to manually hold onto the pipe as it was being set instead of securing it with rigging equipment was not the product of mere misjudgment, but instead resulted from the claimant’s deliberate decision to ignore the employer’s rule which was clearly required to safely fit the size of pipe involved in the industrial accident. (See
Finding of Fact 6); George v. Industrial Commission, 720 P. 2d 624 (Colo.App. 1986). Therefore, as we understand the ALJ’s order, she found the claimant failed to present any plausible explanation for exercising his “discretion” not to use the employer’s rigging equipment.
The claimant’s arguments notwithstanding, the ALJ’s pertinent findings are supported by substantial, albeit conflicting evidence in the record and, thus, are binding on review. Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155
(Colo.App. 1993). It follows, that the existence of evidence which, if credited, might have supported a contrary result affords no basis for relief on appeal. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003).
To the extent the claimant has raised further arguments, they are not persuasive.
IT IS THEREFORE ORDERED that the ALJ’s order dated December 8, 2003, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________
David Cain
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Kathy E. Dean
Scott Triplett, Mountain View, WY, Sean Taylor, Evergreen Builders, Inc., Fort Collins, CO, Larry Green, Evergreen Builders, Inc., Independence, KS, David Herrera, St. Paul Fire
Marine Insurance Company, Denver, CO, James W. Schmehl, Esq., Fort Collins, CO, (For Claimant).
Michael J. Barbo, Esq., Denver, CO, (For Respondents).