W.C. No. 4-463-547Industrial Claim Appeals Office.
July 27, 2001
ORDER OF REMAND
The respondents seek review of Supplemental Order of Administrative Law Judge Gartland (ALJ) which awarded temporary disability benefits commencing June 9, 2000. We set aside the award, and remand the matter for the entry of a new order.
On May 2, 2000, the claimant suffered a compensable injury while working as a trash truck driver. The respondents filed a general admission of liability which admitted liability for temporary disability benefits for the period May 3, 2000 through May 22, 2000, when the claimant was released to return to regular employment and resumed his normal duties under the supervision of Bruce Frantz (Frantz). The claimant testified he reinjured his shoulder while working a 16 hour shift on June 6. On June 8, Dr. Bloink restricted the claimant to “light duties.” On June 9 the claimant returned to work and performed part-time modified employment picking up trash around the employer’s premises under the supervision of Russell Hammell (Hammell). The following work day, the claimant met with Hammell and Frantz. During the meeting the claimant stated that due to “harassment” by Frantz, he would not work in Durango under Frantz’ supervision. The employer then terminated the claimant’s employment. Thereafter, the claimant applied for a hearing on the issue of temporary disability benefits.
The ALJ rejected the respondents’ argument the claimant is barred from receiving temporary disability benefits because the claimant was “responsible” for the loss of modified employment as defined in §8-42-105(4), C.R.S. 2000. The ALJ found § 8-42- 105(4) was not applicable because the employer made no written offer of modified employment in accordance with § 8-42-105(3)(d)(I), C.R.S. 2000. Therefore, the ALJ determined the claimant’s refusal to accept modified employment in Durango did not preclude an award of temporary disability benefits.
On review the respondents contend the ALJ erroneously determined that application of § 8-42-105(4) is dependent on a written offer of modified employment under § 8-42-105(3)(d)(I). We agree, although for reasons different than those asserted by the respondents.
To receive temporary disability benefits a claimant must establish a causal connection between the injury and the loss of wages. Section 8-43-103(1)(a), C.R.S. 2000. To establish a causal connection, the claimant must prove that the industrial injury caused a “disability” lasting more than three work shifts, and that he left work as a result of the disability. PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995). Once the claimant has established an entitlement to temporary disability benefits, such benefits “shall continue” until “the first occurrence of” one of the events listed in § 8-42-105(3)(a)-(d), C.R.S. 2000. Burns v. Robinson Dairy, Inc., 911 P.2d 661 (Colo.App. 1995). However, in PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995), the Supreme Court, interpreting a prior version of the statute, held that a disabled worker who is at fault for the loss of modified employment may receive temporary disability in connection with the subsequent wage loss if the injury remains “to some degree” the cause of the post-termination wage loss. See Bestway Concrete v. Industrial Claim Appeals Office, 984 P.2d 680 (Colo.App. 1999); Black Roofing Inc., v. West, 967 P.2d 195 (Colo.App. 1998).
Section 8-42-105(4), which is the current version of the statute and applies to injuries occurring on or after July 1, 1999 [1991 Colo. Sess Laws, ch. 90, at 266], 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.” Applying the rules of statutory construction, we previously concluded that § 8-42-105(4), and the identical language in §8-42-103(1)(g), C.R.S. 2000, is ambiguous because the term “employment” could refer to the job the claimant held at the time of the industrial injury or modified employment which the claimant obtained subsequent to the disabling industrial injury. McGaffey v. Assured Transportaion Delivery, Inc., W.C. No. 4-434-706 (April 27, 2001); Martinez v. Colorado Springs Disposal, W.C. No. 4-437-497 (March 7, 2001). In Martinez, we reviewed relevant legislative history and concluded that § 8-42-103(1)(g) and § 8-42-105(4) are intended to apply where the claimant is terminated from post-injury modified employment. We reasoned the legislative history indicates the General Assembly enacted § 8-42-105(4) and § 8-42-13(1)(g) to overturn PDM Molding, Inc. v. Stanberg, supra, and preclude an injured worker from recovering temporary disability benefits where the worker is at fault for the loss of post-injury modified employment, regardless of whether the industrial injury remains a proximate cause of the subsequent wage loss. See House Business, Affairs Labor Committee, January 14, 1999, at 2:00 p.m.; Senate Committee on State, Veterans Military Affairs, February 2, 1999, 1:39 p.m. Therefore, the legislature adopted language which precludes the ALJ from finding that a claimant’s post-separation wage loss is “to some degree” the result of the industrial injury where the claimant is `responsible’ for the termination of employment. We adhere to our conclusions in Martinez and McGaffey.
Similarly, in Grant v. Speedy G’s Mexican Restaurant, W.C. No. 4-449-941 (May 17, 2001), we pointed out that both statutes refer to a “temporarily disabled employee” who is responsible for the termination of employment. The references to temporarily disabled employees must mean employees who are not able to perform their pre-injury employment as a result of the injury. It follows the statutes must refer to employees who lose post-injury modified employment.
Accordingly, we disagree with the respondents’ assertion that §8-42-105(4) creates a separate ground for terminating temporary disability benefits. Rather, it operates to bar the reinstatement of temporary disability benefits following the loss of modified employment when the claimant is responsible for the loss of that employment.
Here, the ALJ correctly recognized this claim involves the loss of modified employment. Under § 8-42-105(3)(d)(I) the employer may not terminate temporary disability benefits based upon the claimant’s failure to begin an offer of modified employment unless the offer is in writing See Liberty Heights v. Industrial Claim Appeals Office, ___ P.3d __(Colo.App. No. 00CA2213, July 19, 2001). In contrast, § 8-42-105(3)(b) terminates temporary disability benefits where the claimant actually returns to regular or modified employment, and that subsection of the statute does not require that the return to modified employment be preceded by a written offer. To the contrary, benefits terminate simply because the claimant resumed employment, either modified or regular.
Moreover, there is no requirement that “regular or modified employment” be “permanent” or “full-time.” Rather, if the claimant returns to employment where he earns less than his pre-injury wage, the claimant is entitled to temporary partial disability benefits. Section 8-42-106 C.R.S. 2000.
Here, the claimant admits he returned to work on June 9 and performed light duty within his medical restrictions. Regardless of whether the employer was able to provide full- time modified employment on June 9, the claimant’s return to work terminated his entitlement to temporary total disability benefits. Because, the claimant lost the modified employment the next workday, the critical issue before the ALJ was whether the claimant was “responsible” for the employment termination. Therefore, the ALJ erred insofar as she determined the respondents could not rely on § 8-42-105(4) without proving the requirements of § 8-42-105(3)(d)(I). We do not read § 8-42-105(3)(d)(I) as requiring an employer to make a “written offer” of employment every time it changes the duties to be performed by a temporarily disabled worker who has returned to modified employment.
Under § 8-42-103(1)(g) and § 8-42-105(4), the critical determination is whether the claimant was “responsible” for the circumstances which led to the termination of employment. In other words, did the claimant precipitate the termination by a volitional act which an employee would reasonably expect to result in the loss of employment. Cf. Padilla v. Equipment Corp. 902 P.2d 414 (Colo.App. 1994); Martinez v. Colorado Springs Disposal, supra.
Here, the claimant stated there was “no physical reason” he could not perform the job assignment in Durango. (Tr. p. 43). However, that evidence is not necessarily determinative of whether the claimant precipitated the termination. Cf. Rodco Systems Inc. v. Industrial Claim Appeals Office, 981 P.2d 699 (Colo.App. 1999) (for purposes of receiving unemployment benefits unsatisfactory or hazardous working conditions must be measured by objective standard); Survey Solutions, Inc., v. Industrial Claim Appeals Office, 956 P.2d 1275 (Colo.App. 1998 (whether resignation was warranted by personal harassment must be determined under objective standard); Simington v. Assured Transportation Delivery, W.C. No. 4-318-208 (March 19, 1998) (offer of modified employment must be “reasonably available under objective standard”).
The claimant testified that Frantz harassed him and falsely accused him of missing 30 to 40 customers on the route and failing to deliver polycarts ordered by customers. (Tr. p. 27). Russell admitted he received complaints about Frantz’ managerial style and that he took the claimant’s complaints seriously. (Tr. pp. 47-48, 73). In fact, Russell stated Frantz was the kind of person who could “walk down the sidewalk and irritate people.” (Tr. p. 48). Russell also stated he was trying to deal with the claimant’s complaints, and that following the incident with the claimant Frantz was relieved of his supervisory duties. (Tr. p. 47). Thus, the record contains some evidence which might support a finding that the claimant’s refusal to work in Durango was not “volitional,” and he was not responsible for the separation. Cf. Pace v. Commercial Design Engineering, W.C. No. 4-451-277 (May 15, 2001) (claimant not “responsible” for loss of modified employment where he was not physically able to perform it).
Based upon her erroneous conclusion that § 8-42-105(4) was inapplicable, the ALJ did not determine whether the termination was precipitated by the claimant or the employer. Therefore, the ALJ’s findings of fact are insufficient to permit appellate review and the matter must be remanded for additional findings of fact which resolve the pertinent issue.
On remand the ALJ shall determine whether the claimant was responsible for the termination of his employment. Based upon that determination the ALJ shall enter a new order concerning the respondents’ liability for temporary total disability benefits. However, our remand should not be understood as expressing an opinion concerning the credibility or probative value of the evidence. Those are matters within the sole prerogative of the ALJ. See Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo.App. 1993)
IT IS THEREFORE ORDERED that the ALJ’s Supplemental Order dated March 21, 2000, is set aside and the matter is remanded to the ALJ for the entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
Copies of this decision were mailed July 27, 2001 to the following parties:
Terry L. Turner, 502 E. Montezuma Ave., Cortez, CO 81321
Waste Management of Colorado, 23817 County Road G, Cortez, CO 81321
Judy Byster, Waste Management of Colorado, P. O. Box 937, Cortez, CO 81321
Reliance National Indemnity, Sarah Hellman, Gallagher Bassett Services, P. O. Box 4068, Englewood, CO 80155-4068
Gail C. Harriss, Esq., 572 E. 3rd Ave., Durango, CO 81301 (For Claimant)
Derek Regensburger, Esq. and James B. Fairbanks, Esq., 999 18th St., #1600, Denver, CO 80202 (For Respondents)
BY: A. Pendroy