W.C. No. 4-463-547Industrial Claim Appeals Office.
September 26, 2002
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Gartland (ALJ) dated October 5, 2001, which was entered on remand. The claimant contends the ALJ erroneously denied temporary disability benefits. We disagree, and therefore, affirm.
On May 2, 2000, the claimant suffered a compensable injury while working as a trash truck driver. The respondents admitted liability for temporary disability benefits until May 23, 2000, when the claimant was released to return to regular employment. The claimant resumed his normal duties which required him to drive three days a week in Cortez and two days a week in Durango or Pagosa Springs under the supervision of Bruce Frantz (Frantz). The claimant reinjured his shoulder on June 6 while working a 16 hour shift under the supervision of Frantz.
On June 8, the claimant was medically released to resume “light duties.” The claimant returned to work on June 9 picking up trash around the employer’s premises under the supervision of Russell Hammell (Hammell). On June 12 the claimant participated in a telephone conference with Hammell and Frantz. During the meeting, Hammell asked the claimant whether he would perform a light duty job assignment in Durango where he would ride as a passenger for a trash truck driver and give the driver travel directions. The claimant refused due to allegations of “harassment” by Frantz. Hammell then terminated the claimant’s employment.
Section 8-42-105(4), 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.” The critical determination under the statute is whether the claimant precipitated 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); Colorado Springs Disposal v. Industrial Claim Appeals Office,
___ P.2d __(Colo.App. No. 01CA0464, March 28, 2002).
In her prior order the ALJ found it was immaterial whether the claimant was “responsible” for the termination of employment because the offer of light duty employment in Durango was not made in writing as required by § 8-42-105(3)(d)(I), C.R.S. 2002. Therefore, the ALJ determined the claimant’s refusal to accept the assignment did not preclude an award of temporary disability benefits.
On appeal of the prior order we concluded the ALJ erroneously determined that application of § 8-42-105(4) is dependent on proof the respondents made a written offer of modified employment under §8-42-105(3)(d)(I). Further, we determined the ALJ’s findings were insufficient to determine whether she found the claimant was responsible for the termination of the employment. Therefore, we set aside the prior award of temporary disability benefits and remanded the matter for additional findings and the entry of a new order.
On remand the ALJ determined the employer made reasonable efforts to accommodate the claimant’s medical restrictions after June 8, 2000, and that the claimant was discharged for refusing a light duty assignment within his medical restrictions. Moreover, the ALJ determined the claimant was not reasonably justified in refusing the job assignment because there was no physical reason he could not perform the modified employment assignment in Durango, and it was less likely the claimant would have encountered the conflict he had with Frantz before June 12. Therefore, the ALJ determined the claimant was responsible for the termination from employment and entered the October 5 order denying temporary disability benefits. The claimant timely appealed.
On review of the October 5 order, the claimant contends the ALJ failed to resolve conflicts in the evidence concerning whether he resigned or was discharged from the employment and whether there were physical reasons he refused the Durango assignment. We disagree.
As argued by the claimant, the record contains an Exit Interview form completed by Hammell dated June 12, 2000. The form indicates the claimant resigned due to a “Rules Violation.” However, the form also indicates the claimant was discharged due to “unacceptable work performance” and a rules violation. The ALJ resolved the conflict by crediting Hammell’s testimony that he discharged the claimant when the claimant refused the light duty assignment in Durango. (See Finding of Fact 11).
The ALJ also expressly recognized the claimant’s testimony that he didn’t want to work in Durango because the trucks were junk and there was no one to help him pick up trash on his route. (Finding of Fact 10) However, the ALJ ultimately credited the claimant’s admission that there was no physical reason he was unable to work in Durango. (See Tr. p. 43; Finding of Fact 10).
Moreover, the ALJ is only required to make findings of fact on the evidence she considered persuasive and determinative of the disputed issues. See Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000). The claimant concedes the evidence that he received unemployment insurance benefits following the employment termination is not dispositive of his entitlement to temporary disability benefits. Therefore, the ALJ’s failure to mention the evidence is not reversible error.
Next, we reject the claimant’s contention there is not substantial evidence in the record to support the ALJ’s findings that the June 12 light duty assignment in Durango involved significantly less responsibility than the claimant had when he was a trash truck driver, and it was “less likely the claimant would have encountered the same occasions for conflict with Bruce Frantz that [sic] he had in the past.” (Discussion and Conclusions of Law 3). The claimant’s pre-injury job required him to drive a trash truck and load trash bags into the truck. The light duty assignment only required the claimant to be a passenger and give the driver travel directions. Because the claimant was not required to drive, lift or even get out of the truck, the ALJ reasonably inferred the offer of light duty employment had less responsibility than the claimant’s previous duties. (see Tr. p. 64). This evidence also supports the ALJ determination that Frantz was unlikely to voice the same complaints about the claimant’s work that he had when the claimant was driving.
Finally, the claimant argues he cannot be responsible for the termination of modified employment where the employer failed to make a written offer of light duty employment consistent with the requirements of § 8-42-105(3)(d)(I).
Our Order of Remand previously considered and rejected this contention. The claimant’s further arguments do not persuade us to depart from our prior conclusions.
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. 2002. PDM Molding, Inc. v. Stanberg, 898 P.2d 542
(Colo. 1995). As argued by the claimant, once the causal connection is established benefits continue until “the first occurrence of” one of the events listed in § 8-42-105(3)(a)-(d), C.R.S. 2001. Burns v. Robinson Dairy, Inc., 911 P.2d 661 (Colo.App. 1995). Section 8-42-105(3)(b), terminates temporary disability benefits when 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.
In contrast, § 8-42-105(3)(d)(I) terminates temporary disability benefits if the claimant fails to begin a written offer of modified employment. However, § 8-42-105(3)(d)(I) does not govern the entitlement to temporary disability benefits where the claimant is separated after beginning modified employment. See Liberty Heights v. Industrial Claim Appeals Office, 30 P.3d 872 (Colo.App. 2001).
Regardless of whether the modified employment offer was in writing, the claimant admitted he returned to modified employment on June 9. Thus, temporary total disability benefits terminated by operation of §8-42-105(3)(b) and it was immaterial whether the provisions of §8-42-105(3)(d)(I) were fulfilled.
In addition, we previously held that § 8-42-105(4), and the identical language in § 8-42-103(1)(g), C.R.S. 2002, applies to the termination of post-injury modified employment because legislative history indicates the statute was enacted to overturn PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995). Martinez v. Colorado Springs Disposal, W.C. No. 4-437-497 (March 7, 2001). However, in Colorado Springs Disposal v. Industrial Claim Appeals Office, ___ P.2d ___(Colo.App. No. 01CA0464, March 28, 2002), the court held the term “employment” is not ambiguous and applies to the claimant’s separation from regular or modified employment. Indeed, the court noted the term “employment” is broadly defined in § 8-40-201(8), C.R.S. 2002. Because the court has concluded § 8-42-105(4) is not limited to the loss of modified employment, it follows that application of § 8-42-105(4) does not require a written offer of modified employment. Rather, the critical issue before the ALJ was whether the claimant was “responsible” for the termination of the employment.
IT IS THEREFORE ORDERED that the ALJ’s order dated October 5, 2001, 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. 2001. 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 September 26, 2002 to the following parties:
Terry L. Turner, 502 E. Montezuma Ave., Cortez, CO. 81321
Judy Byster, Waste Management of Colorado, P. O. Box 937, Cortez, CO. 81321
Reliance National Indemnity, c/o Dana Brendenmuhl, Gallagher Bassett Services, Inc., P. O. Box 4068, Englewood, CO. 80155-4068
Gail C. Harriss, Esq., 572 E. 3rd Ave., Durango, CO. 81301 (For Claimant)
James B. Fairbanks, Esq., 999 18th St., #1600, Denver, CO. 80202 (For Respondents)
BY: A. Hurtado