W.C. No. 4-214-241Industrial Claim Appeals Office.
September 14, 1995
FINAL ORDER
The respondents seek review of a final order of Chief Administrative Law Judge Felter (ALJ) which awarded temporary partial and temporary total disability benefits. We affirm.
Insofar as pertinent, the record reveals that the claimant suffered a compensable back injury on March 8, 1994. As a result of the injury, the claimant was temporarily and totally disabled for approximately three weeks. Thereafter, the claimant returned to work for the respondent-employer where he remained until June 17, 1994.
The respondents contend that the claimant was suspended from work on June 17, 1994, due to verbal confrontations with his supervisor, Paul Lane (Lane), which dated back to April 1994. The respondents assert that the confrontations resulted from the claimant’s dislike of Lane, and thus, were unrelated to the industrial injury. Therefore, relying on Monfort of Colorado v. Husson, 725 P.2d 67 (Colo.App. 1986), rev’d on other grounds, 783 P.2d 273 (Colo. 1989), and PDM Molding Inc. Stanberg, 855 P.2d 280
(Colo.App. 1994), the respondents argue that the claimant was “at fault” for his suspension, and is precluded from receiving temporary disability benefits in connection with his subsequent wage loss. We disagree.
Monfort of Colorado v. Husson, supra, stands for the proposition that an injured employee who is “at fault” for the loss of the employment out of which the injury arose is precluded from receiving temporary disability benefits in connection with the subsequent wage loss. However, in PDM Molding Inc. Stanberg, 898 P.2d 542 (Colo. 1995), our Supreme Court held that the burden to prove “fault” rests with the employer, and even if the employer satisfies that burden, the claimant may receive temporary disability benefits if the “work-related injury contributed to some degree to his subsequent wage loss”.
The Court of Appeals has concluded that the concept of “fault” involves a volitional act by the claimant or the claimant’s exercise of a degree of control over the circumstances resulting in the termination Padilla v. Digital Equipment Corp., 902 P.2d 414 (Colo.App. 1994). Further, the resolution of this issue is dependent on the specific facts of the claimant’s employment separation. Padilla v. Digital Equipment Corp., supra. Consequently, we must uphold the ALJ’s determination if supported by substantial evidence in the record, and the ALJ’s plausible inferences drawn from conflicts in the evidence. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.); General Cable Co. v. Industrial Claim Appeals Office, 878 P.2d 118 (Colo.App. 1994).
Here, the ALJ was not persuaded that the claimant was “at fault” for the June 17 suspension. Instead, the ALJ credited the claimant’s testimony and Dr. Curran’s opinions to find that the claimant’s back injury resulted in severe pain which caused the claimant to be angry and engage in unpleasant verbal exchanges with his employment supervisor. The ALJ found that on one occasion the claimant told his health care provider that he felt like killing Lane. The ALJ found that the health care provider informed the employer of the claimant’s comment, which the employer perceived as a threat. The employer then determined that the claimant was mentally unfit to perform any job for them, and on June 17, 1994, removed the claimant from work and placed the claimant on short term disability. The ALJ also found that the claimant has not been determined to be at maximum medical improvement and has not been offered modified employment.
Contrary to the respondents’ contention, the ALJ’s factual determinations are supported by substantial evidence in the record. Tr. pp. 11, 24, 64, 66; Curran report August 30, 1994. Consequently, it is immaterial that the record contains some evidence, including Dr. Gutterman’s testimony, which, if credited, might support the conclusion sought by the respondents. Cary v. Chevron U.S.A., Inc.867 P.2d 117 (Colo.App. 1993); Dow Chemical Co. v. Industrial Claim Appeals Office, 843 P.2d 122 (Colo.App. 1992) (ALJ free to credit one medical opinion to the exclusion of a contrary medical opinion). Moreover, in view of the fact that the claimant’s injury occurred in March 1994, the evidence that the claimant had other confrontations with Lane dating back to April 1994, is not inconsistent with the ALJ’s finding of a causal connection between the claimant’s back pain and his inability to cope with criticism and instructions at work from his supervisors.
Because the ALJ’s findings of fact support a conclusion that the claimant did not act volitionally or exercise control over the circumstances surrounding his June 17 suspension, we must uphold the ALJ’s determination that the claimant was not “at fault” for his employment separation. Padilla v. Digital Equipment Corp., supra. Therefore, the ALJ did not err in awarding temporary disability benefits for the claimant’s wage loss after June 17, 1994.
We note that neither the respondents nor the claimant seeks review of the ALJ’s order insofar as it limited the claimant to temporary partial disability benefits for the period June 17, 1994 to December 17, 1994. Therefore, we do not consider whether the ALJ correctly ordered the payment of temporary total disability benefits to begin December 18, 1995.
IT IS THEREFORE ORDERED that the ALJ’s order dated, April 4, 1995, 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, CO80203, by filing a petition for review with the court, with service of acopy of the petition upon the Industrial Claim Appeals Office and allother parties, within twenty (20) days after the date this Order ismailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).
Copies of this decision were mailed September 14, 1995 to the following parties:
John H. Young, Jr., 3002 Columbine St., Denver, CO 80205-4748
General Cable Co., c/o Holan Manufacturing Co., 5600 W. 88th Ave., Westminster, CO 80030-3005
National Union Fire Ins. Co. of Pittsburgh, c/o American Int’l Adjustment, P.O. Box 32130, Phoenix, AZ 85018
Crawford Co., 7000 S. Yosemite, Ste. 150, P.O. Box 6502, Englewood, CO 80155-6502
Douglas R. Phillips, Esq., 155 S. Madison, Ste. 300, Denver, CO 80209-3014 (For the Claimant)
Lawrence D. Blackman, Esq., 1290 Broadway, Ste. 708, Denver, CO 80203 (For the Respondents)
BY: _______________________