W.C. No. 4-509-612.Industrial Claim Appeals Office.
December 16, 2004.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Coughlin (ALJ) which determined the claimant is entitled to temporary total disability (TTD) benefits. The respondents contend the claimant’s TTD benefits were properly terminated because she refused an offer of modified employment within her restrictions, and because she was responsible for a termination from employment. We affirm.
The claimant sustained a compensable back injury on July 25, 2001, while employed at the respondent-employer’s club. It is not clear from the record what job the claimant held at the time of the injury. In any event, the respondents admitted liability for TTD benefits.
On April 1, 2002, Dr. Chan, one of the authorized treating physicians, placed the claimant at maximum medical improvement (MMI), assessed a 5 percent whole person impairment, and imposed permanent restrictions on lifting and sitting. The respondents apparently filed a Final Admission of Liability admitting for the rating and terminating TTD benefits effective April 1.
The claimant underwent a Division-sponsored independent medical examination (DIME). In January 2003 the DIME physician opined the claimant was not at MMI. The respondents did not challenge the DIME physician’s determination and filed a General Admission of Liability reinstating TTD benefits effective February 4, 2003.
The claimant then sought a hearing requesting that the respondents be ordered to pay TTD benefits for the period between April 1, 2002 and February 4, 2003 (the TTD rate was greater than the admitted permanent disability benefits paid for this period). The respondents raised the defenses that the claimant refused an offer of modified employment within the meaning of § 8-42-105(3)(d)(I), C.R.S. 2004, and that she was responsible for a termination from employment within the meaning of §8-42-103(1)(g), C.R.S. 2004, and § 8-42-105(4), C.R.S. 2004 (collectively the termination statutes).
At the hearing the respondents produced only documentary evidence, and no witnesses were called by either side. The respondents documents included three letters which the employer allegedly sent to the claimant on May 8, 2002, May 15, 2002, and May 16, 2002. The ALJ found that the first two letters set forth the restrictions imposed by Dr. Chan, requested the claimant to contact the employer regarding work, and stated that if the claimant did not contact the employer she would be considered to have voluntarily resigned. The May 16 letter states the employer has “offered an accommodation” and the claimant will be considered to have resigned unless she accepts the “accommodation” within three days.
The ALJ found the respondents failed to prove either affirmative defense to the claim for TTD benefits and ordered the relief requested by the claimant. With respect to § 8-42-105(3)(d)(I), the ALJ found the respondents failed to prove that Dr. Chan was “the attending physician,” that Dr. Chan’s release to “modified employment” was ever given to the claimant, or that any specific employment was ever offered to the claimant. The ALJ further found the record was insufficient to establish whether the employer attached any conditions to the employment, whether the claimant attempted to return to work, and whether the claimant was physically able to perform the employment. Concerning the “termination statutes” the ALJ found the respondents failed to establish that the claimant engaged in “volitional conduct” which was the cause of any termination. Specifically, the ALJ stated there are “far too many unanswered questions for the ALJ to evaluate the totality of the circumstances.”
The respondents filed a petition to review alleging the ALJ erred in finding that they failed to establish the defenses established by §8-42-105(3)(d)(I) and the termination statutes. However, the respondents’ brief addresses only the termination statutes. Nevertheless we will address both defenses.
The ALJ correctly determined that § 8-42-105(3)(d)(I) and the termination statutes represent affirmative defenses and the respondents bore the burden of proof to establish their applicability. The respondents admitted liability for TTD benefits, then sought to terminate them based on Dr. Chan’s finding of MMI. Ultimately, the DIME physician determined that the claimant was not at MMI, and that finding became binding on the parties because it was not challenged. Section 8-42-107(8)(b)(III), C.R.S. 2004. Thus, if the respondents had any other basis to terminate TTD benefits commencing on April 1, 2002, it was incumbent upon them to prove such defenses. See Colorado Compensation Insurance Authority v. Industrial Claim Appeals Office, 18 P.3d 790
(Colo.App. 2000).
We are required to uphold the ALJ’s findings of fact if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2004. This standard of review requires us to consider the evidence in the light most favorable to the prevailing party, and defer to the ALJ’s credibility determinations, resolution of conflicts in the evidence, and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003). The question of whether a party bearing the burden of proof has sustained the burden is itself a question of fact. Eisnach v. Industrial Commission, 633 P.2d 502
(Colo.App. 1981).
Here, the record supports the ALJ’s determination that the respondents failed to establish the defense provided by § 8-42-105(3)(d)(I). First, under the statute the release to modified employment must be made by “the attending physician.” There may be more than one “attending physician,” but not all attending physicians are “the attending physician.” Rather, “the attending physician” connotes one with primary control over the claimant’s treatment, not merely the provision of some authorized treatment. See Popke v. Industrial Claim Appeals Office, 944 P.2d 677, 680-681 (Colo.App. 1997).
Here, the ALJ noted that Dr. Chan’s report refers to Dr. Kalevik as the “primary care physician.” Further, Dr. Chan’s report suggests that he examined the claimant primarily to evaluate her condition and provide a rating, and that he was not actively involved in managing the claimant’s care. The ALJ was certainly not required to find the respondents met their burden of proof to establish that Dr. Chan was “the attending physician” within the meaning of § 8-42-105(3)(d)(I).
We also agree that the ALJ was not compelled to find the claimant ever physically received Dr. Chan’s release, as required by Popke v. Industrial Claim Appeals Office, supra. Of course, the claimant never testified she received the release, and the Dr. Chan’s report does not indicate that it was sent to the claimant. The respondents’ May 15 letter appears to state that a copy of the Dr. Chan’s report was provided to the claimant, but the weight and credibility of the letter was a matter for the ALJ. We cannot say she erred in finding unpersuasive this assertion contained in the respondents’ own letter.
Finally, we agree that the record is insufficient to establish that the respondents ever offered the claimant any modified employment within her restrictions. None of the employer’s letters specify a particular position or duties which the claimant was expected to perform. At most, the letters describe the employer’s willingness to attempt to “accommodate” the claimant if she returns. However, the ALJ was not required to find that the employer’s willingness to attempt an “accommodation” rises to the level of an offer of modified employment within the claimant’s restrictions, as is required by the statute. See Laurel Manor Care Center v. Industrial Claim Appeals Office, 964 P.2d 589
(Colo.App. 1998) (where the employer provided the claimant with a list of specific duties within medical restrictions the employer made an offer of modified employment within the meaning of the statute).
For similar reasons, we uphold the ALJ’s finding that the respondents failed to prove they are entitled to relief under the termination statutes. The termination statutes require the respondents to prove the claimant was “responsible for termination of employment.” A claimant is “responsible” for a termination from employment if the claimant engaged in “volitional conduct” or “exercised some degree of control over the circumstances leading to the termination.” See Colorado Springs Disposal v. Industrial Claim Appeals Office, 58 P.3d 1061 (Colo.App. 2002) (term “responsible” introduces concept of “fault” as it was used prior to decision in PDM decision); Padilla v. Digital Equipment Corp., 902 P.2d 414
(Colo.App. 1994), opinion after remand, 908 P.2d 1185 (Colo.App. 1995). We have previously held that a claimant is not responsible for a termination from employment if the effects of the injury render the claimant physically incapable of performing the duties of the employment provided. Eg. Bonney v. Pueblo Youth Service Bureau, W.C. No. 4-485-720
(April 24, 2002); Aguilar v. Matrix Logistic, Inc., W.C. No. 4-473-075
(December 5, 2002).
Here, as the ALJ found, it is unclear what happened after the respondents sent the letter of May 16, 2002. As the claimant argues, it is impossible to tell from this record whether the claimant was even terminated from employment after the May 16 letter. The respondents produced no witness nor any personnel records establishing that the claimant was terminated, or the reason or reasons for the termination.
Even if it may be assumed the employer terminated the claimant for failing to return to work and accept the proposed “accommodation,” the ALJ was not compelled to conclude the claimant’s refusal was “volitional.” As the ALJ recognized, it is impossible to tell what duties the employer expected the claimant to perform. Therefore, it is impossible to determine whether the duties were within the claimant’s physical restrictions. It follows the ALJ was not required to assume that any refusal of the claimant to accept the supposed offer of employment was the product of “volitional conduct.” Bonney v. Pueblo Youth Services Bureau, supra.
IT IS THEREFORE ORDERED that the ALJ’s order dated August 2, 2004, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________ David Cain
___________________ Kathy E. Dean
Jayne Witherspoon, Denver, CO, Metropolitan Club of Denver, c/o David G. Kroll, Esq., Denver, CO, Liberty Mutual Insurance, Irving, TX, Craig C. Eley, Esq., Denver, CO, (For Claimant).
David G. Kroll, Esq., Denver, CO, (For Respondents).