Opinion
W.C. No. 4-404-040
October 18, 1999
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Gandy (ALJ) which awarded the claimant temporary total disability benefits from July 3, 1998. The respondents argue that because the claimant quit modified employment, all subsequent wage loss was the result of her own actions. The respondents further contend that an award of temporary disability benefits is prohibited by the Court of Appeals' opinion in Laurel Manor Care Center v. Industrial Claim Appeals Office, 964 P.2d 589 (Colo.App. 1998). We affirm.
The claimant sustained a compensable injury to the right upper extremity. By July 3, 1998, the claimant had returned to work at modified duties within her medical restrictions. However, the claimant believed she needed a two-week leave of absence to rest her arm. The employer denied the request for leave and the claimant resigned, believing that she would be allowed to return to work at the sacrifice of her seniority.
After two weeks, the claimant returned to the employer but was denied reemployment. Subsequently, the claimant sought employment with temporary agencies, but has not been able to find work. The claimant obtained a single placement and was dismissed because of her restrictions.
The ALJ found the claimant was at fault for her separation from employment. However, he also determined the claimant's subsequent wage loss was to some degree the result the industrial injury. Therefore, applying PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995)(PDM), the ALJ awarded temporary disability benefits from July 3 until terminated in accordance with law.
I.
On review, the respondents contend the claimant's voluntary decision to quit the modified employment severed all causal relationship between the injury and subsequent wage loss. The respondents argue that a person who is "terminated for cause has no choice concerning their continued employment," while the person who voluntarily quits "chooses to forego the wages of modified employment for personal reasons." We are not persuaded this distinction compels a different result here, and conclude the ALJ correctly applied PDM.
PDM involved a claimant who was "terminated for fault." However, we have repeatedly held there is no valid distinction under the PDM analysis between terminations from employment caused by the claimant's deliberate misconduct and separations resulting from the claimant's voluntary resignation. In either event, the separation from employment is, in the first instance, the result of the claimant's volitional conduct. Nothing in PDM suggests a rule of law which would favor claimants who actively engage in misconduct so as to cause a separation over claimants who simply resign from employment to avoid a confrontation with the employer. See Gonzales v. National King Coal, Inc., W.C. No. 3-114-636 (May 8, 1996); DeBias v. McCool's Custom Painting, W.C. 4-198-955 (October 10, 1995). We are also aware that the Court of Appeals has applied the PDM analysis in cases involving voluntary resignations. E.g. Wells v. Industrial Claim Appeals Office (Colo.App. No. 95CA0302, October 5, 1995) (not selected for publication).
The respondents have not advanced any argument which persuades us to depart from these prior rulings. Therefore, we conclude the ALJ correctly applied the PDM analysis to the facts of this case
II.
The respondents next contend that the ALJ's award of temporary disability benefits was improper under Laurel Manor Care Center v. Industrial Claim Appeals Office, supra. We disagree.
We have previously ruled that the holding in Laurel Manor is restricted to cases involving the claimant's refusal to begin modified employment after receiving a written offer in accordance with § 8-42-105(3)(d)(I), C.R.S. 1999. We have reasoned that, on its face, Laurel Manor is restricted to the "particular section" at issue, to wit, § 8-42-105(3)(d). 964 P.2d at 591. Moreover, the rationale for Laurel Manor is that in cases of refusal to accept a written offer of employment, the claimant may always defeat a statutory claim for termination of benefits by refusing the written offer and relying on the continuing relationship between the wage loss of the injury. Martinez v. Worley McCullough, Inc., W.C. No. 4-327-668 (February 19, 1999); Dickerson v. Norwest Corp., W.C. No. 4-288-686 (December 14, 1998). In accordance with our view the Court of Appeals has applied the PDM analysis in cases where the claimant is arguably at fault for the loss of the modified employment but seeks reinstatement of temporary disability benefits. E.g. Black Roofing Inc. v. West, 967 P.2d 195 (Colo.App. 1998).
Most recently, the Court of Appeals applied the PDM analysis in Bestway Concrete v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 98CA1243, July 8, 1999). In that case the respondents asserted the claimant's right to temporary disability benefits was absolutely terminated because he returned to modified employment in accordance was § 8-42-105(3)(b), C.R.S. 1999. However, the court rejected the argument because it determined the claimant's termination was in part attributable to the injury, and because the claimant established that the post-separation wage loss was to some degree the result of the injury.
We decline the respondents' invitation to depart from these rulings and hold that the principle announced in Laurel Manor should be generalized to apply to all terminations for fault. Such a result would render PDM meaningless. Compare § 8-42-105(4), C.R.S. 1999, applicable to injuries on or after July 1, 1999 (temporary wage loss not attributable to the injury if the temporarily disabled employee is responsible for termination of employment).
IT IS THEREFORE ORDERED that the ALJ's order dated May 24, 1999, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Bill Whitacre
Examiner Halsey dissents:
I am not convinced that the holding in PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995), extends to cases in which the claimant voluntarily resigns from modified employment, intending to be unemployed or withdraw from the labor market. Although the Court did not draw this distinction, I find it significant that PDM involved an involuntary termination. Therefore, I would apply that holding only to resignation cases where the claimant intended to continue working for some employer at the time of the resignation. Absent a finding to that effect, I would hold that an ALJ is free to find that the claimant's resignation is an intervening event, even if there is persuasive evidence that the claimant's ability to obtain substitute employment is negatively impacted by the injury. Cf. El Paso County Dept. of Social Services v. Donn, 865 P.2d 877 (Colo.App. 1993).
Here, at the very least, I believe that the PDM analysis was improperly applied to the two-week period in which the claimant declined to work. Cf. Laurel Manor Care Center v. Industrial Claim Appeals Office, 964 P.2d 589 (Colo.App. 1998). Therefore, I would reverse that portion of the award. Further, I would remand the case for a determination of whether the claimant's wage loss after the two-week period was proximately caused by her injury, or whether the resignation was an intervening event.
NOTICE
This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. 1999.
Copies of this decision were mailed October 18, 1999 the following parties:
Ana Maria Aguirre, 1641 Main St., #27, Longmont, CO 80501
Longmont Foods, 150 Main St., Longmont, CO 80501-5941
Doug Jensen, Conagra Risk Management, P.O. Box G, Greeley, CO 80632
Miguel Martinez, Esq., 1102 Fifth St., Ste. A, Greeley, CO 80631 (For Claimant)
Bradley A. Hall, Esq., P.O. Box 978, Longmont, CO 80502-0978 (For Respondents)
BY: A. Pendroy