Opinion
W.C. No. 4-779-335.
October 27, 2010.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Broniak (ALJ) dated April 28, 2010 that found the claimant was responsible for the termination of her employment and that certain emergency room (ER) visits were not authorized nor were true emergencies. We affirm.
The claimant suffered an industrial injury on May 5, 2008. The employer terminated the claimant's employment on May 28, 2008 after the claimant gave her own prescription medication to a co-worker. The ALJ concluded that the claimant was responsible for her termination and resulting wage loss. The ALJ found that the ER treatment the claimant received at Montrose Memorial Hospital, Rio Grande Hospital, Conejos County Hospital and the San Luis Valley Regional Medical Center Emergency Room was not authorized by the respondents. The ALJ further determined that the records from the facilities did not reflect that the claimant had any true medical emergencies related to her work injury. Accordingly, the ALJ found that the respondents were not liable for the payment of the medical bills associated with the treatment the claimant received at those facilities.
I.
The claimant first contends that the ALJ erred as a matter of law when ruling that the claimant was terminated for cause from her employment. We are not persuaded that the ALJ committed reversible error.
Sections 8-42-105(4), C.R.S., and 8-42-103(1)(g), C.R.S. (referred to as the termination statutes), contain identical language stating that in cases "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." In Colorado Springs Disposal v. Industrial Claim Appeals Office, 58 P.3d 1061 (Colo. App. 2002), the court held that the term "responsible" reintroduced into the Workers' Compensation Act the concept of "fault" applicable prior to the decision in PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995). Hence the concept of "fault" as it is used in the unemployment insurance context is instructive for purposes of the termination statutes. In that context "fault" requires that the claimant must have performed some volitional act or exercised a degree of control over the circumstances resulting in the termination. Padilla v. Digital Equipment Corp., 902 P.2d 414 (Colo. App. 1995), opinion after remand, 908 P.2d 1185 (Colo. App. 1985). That determination must be based upon an examination of the totality of circumstances. Id. The burden to show that the claimant was responsible for her discharge is on the respondents. Colorado Compensation Insurance Authority v. Industrial Claim Appeals Office, 18 P.3d 790 (Colo. App. 2000).
Here, the ALJ found that the respondents had established that the claimant was responsible for the termination of her employment. In so doing the ALJ made the following findings of fact. The claimant was terminated because she gave one of her own prescription medications to a co-worker. The claimant admitted to providing a prescription medication (Ibuprofen) to a coworker. Tr. at 56, 62, 114, 120, 122. The claimant's assertion that the employer treated other employees who engaged in similar conduct differently was unpersuasive. The ALJ concluded that the claimant's behavior of giving a prescription medication to a co-worker constituted a volitional act which she would reasonably expect to result in loss of her employment, especially as a person employed in the medical field.
The claimant believes that the employer terminated her employment due to her work injury and related physical work restrictions, rather than for providing the medication to the coworker. However, the ALJ determined that the evidence did not support the claimant's contentions concerning the employer's true reason for terminating her employment. On this issue, the ALJ made the following findings of fact with record support. The claimant asserted her employer expected her to work full duty although she had work restrictions. Tr. at 106. However, the ALJ found that the claimant reported to the ER on May 9, 2008 that she was working light duty. Exhibit B at 4. The ALJ noted that the claimant also asserted that the ER issued work restrictions following her visit on May 9, 2008, yet nothing in the treatment notes reflects the imposition of physical restrictions. Exhibit B at 4-6. The ALJ concluded that the claimant's testimony concerning the employer's failure to accommodate the claimant's work restrictions lacked credibility. The ALJ found that due to the claimant's overall lack of credibility, her testimony that the employer refused to honor her work restrictions and allow her to work modified duty lacked credibility. Therefore, the ALJ concluded that the resulting wage loss was due to the termination of the claimant's employment for which she was responsible.
The question whether the claimant acted volitionally or exercised a degree of control over the circumstances of the termination is ordinarily one of fact for the ALJ. Knepfler v. Kenton Manor, W.C. No. 4-557-781 (March 17, 2004). Accordingly, we must uphold the ALJ's findings if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S.; Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo. App. 1995). This standard of review requires us to view the evidence in the light most favorable to the prevailing party, and to accept the ALJ's resolution of conflicts in the evidence as well as plausible inferences which she drew from the evidence. Industrial Commission v. Royal Indemnity Co., 124 Colo. 210, 236 P.2d 293 (1951); Metro Moving Storage Co. v. Gussert, supra. Resolving conflicting inferences which could be drawn from the competing testimony is solely in the ALJ's discretion. Id. This standard of review is deferential and the scope of our review in this regard is "exceedingly narrow." Id. Under this standard of review it is also the ALJ's sole prerogative to evaluate the credibility of the witnesses and the probative value of the evidence. We may not substitute our judgment for that of the ALJ regarding credibility matters unless there is such hard, certain evidence contradicting the ALJ's determination that it would be error as a matter of law. See Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986).
Here, the ALJ made her determinations on the responsibility for the claimant's loss of her employment based in large part upon admissions made by the claimant and evaluation of her lack of credibility. The credibility determination was partly based upon conflicts between the claimant's testimony and material found in the medical record. We do not view this as a situation where the ALJ's judgment on credibility can be viewed as an error as a matter of law. Therefore we are bound by such determinations. Halliburton Services v. Miller, supra.
The claimant further argues that she was never advised that there was a company policy against giving her own prescription medications to a co-worker and that she had witnessed co-workers exchanging personal medication with one another without being disciplined. The claimant contends that because she was unaware that her actions of giving a co-worker an Ibuprofen was wrongful and could result in termination, that she performed no volitional act that led to her termination and so was not responsible for her termination pursuant to § 8-42-105(4).
We first note that the ALJ found that the claimant's assertion that the employer treated other employees differently who engaged in similar conduct was unpersuasive. We again view this as a binding credibility determination. Moreover, the ALJ was persuaded that the claimant, as a person working in the medical fields, knew it was inappropriate to give prescription medications to a co-worker. The ALJ's findings support her determination that the claimant was responsible for her termination.
II.
The claimant next contends that the ALJ erred when ruling that the termination statutes apply when the claimant was on work restrictions at the time she was terminated, but her employer did not offer the claimant modified duty or accommodate her restrictions. The claimant argues that even if she was terminated for cause she is still entitled to receive temporary disability benefits because at the time she was terminated she was not offered a modified job within her restrictions and after her termination she was unable to locate employment within her restrictions. The claimant, citing Anderson v. Longmont Toyota, Inc. 102 P.3d 323 (Colo. 2004), argues that the termination statutes only prevent award of temporary benefits in situations where the employee has returned to modified work, and the employer accommodates those restrictions and then the employee leaves for reasons that are the employee's own fault.
However, as noted above, the ALJ determined that the claimant's assertion that she was given work restrictions that her employer failed to accommodate lacked credibility. We again view this as primarily a credibility issue. As noted above we may not substitute our judgment for that of the ALJ regarding credibility matters unless there is such hard, certain evidence contradicting the ALJ's determination that it would be error as a matter of law. See Halliburton Services v. Miller, supra. Here, the claimant's testimony was found by the ALJ to be contradicted by the medical evidence on restrictions and that finding is supported by substantial evidence in the ER records. Exhibit B at 4-6.
III.
The claimant next contends that the ALJ erred as a matter of law and fact in ruling that the treatment the claimant received in various emergency rooms for her work injury was not compensable because such treatment was not received for "any true medical emergencies" related to the work injury. The claimant, citing Sims v. Industrial Claim Appeals Office 797 P.2d 777 (Colo. App. 1990), argues that she had medical emergencies which allowed her the right to obtain treatment without undergoing the delay inherent in notifying the employer and awaiting approval. As we understand the claimant's argument she contends that the ALJ erred in her definition of "emergency" apparently limiting it to situations where life is threatened.
In Colorado, the court of appeals has recognized an exception for emergency treatment to the employer's right to choose the treating physician. Sims v. Industrial Claim Appeals Office, 797 P.2d 777 (Colo. App. 1990). Rule of Procedure 8-2, 7 Code Colo. Reg. 1101-3 (2009) makes specific provision for emergency situations. Rule 8-2(B) provides that in an emergency situation the injured worker shall be taken to any physician or medical facility that is able to provide the necessary care. Rule 8-2 further provides that when emergency care is no longer required the usual provisions relating to the employer's right in the first instance to select the medical care provider apply.
We agree that the emergency exception is not necessarily limited to situations where life is threatened. Bunch v. Industrial Claim Appeals Office 148 P.3d 381 (Colo. App. 2006). However, we do not read the ALJ's order as limiting the emergency exception to life threatening situations. Rather, the ALJ first noted the emergency exception under Sims v. Indus. Claim Appeals Office. The ALJ then determined that the claimant had failed to prove by a preponderance of the evidence that any of the ER visits were either authorized, reasonable, necessary, related or that they represented true emergency treatment. We note that the claimant does not challenge in her appeal the determination that the visits were not related to the industrial injury, which would be a separate ground for relieving the respondents' from liability for the ER visits.
Moreover, the ALJ additionally found that the claimant, at her discretion, repeatedly sought ER treatment without first attempting to obtain authorization from the respondents. The ALJ found that the medical records from the ER facilities reflected that the claimant did not have any true medical emergencies that were related to her work injury. In our view theses findings are inconsistent with the claimant's contention that the ALJ erred in her definition of "emergency" by limiting it to situations where life is threatened.
The ALJ was not persuaded that the visits to the various ERs were due to the claimant's need for "emergency treatment," and we cannot say that the record compels that finding. Generally speaking, the "emergency doctrine" requires the existence of a bona fide emergency requiring treatment. Marks v. Continental Airlines, Inc., W. C. No. 4-298-455 (February 27, 1998); Lucero v. Jackson Ice Cream, W.C. No. 4-170-105 (January 6, 1995). In our view, the ALJ's finding that ER treatment was not "emergency" treatment is a plausible inference from this evidence, and therefore, the finding must be upheld.
The claimant contends that the ALJ's finding that the claimant initially sought ER treatment at Montrose Memorial Hospital four days after her injury without making any attempt to discuss the matter with the insurer or employer is not supported by the evidence. The claimant contends that it was the employer, not the claimant, who scheduled an appointment for her with Dr. Smith. Dr. Smith was on vacation and was unable to schedule an appointment until May 21, 2008. Thus, the claimant argues that it was reversible error for the ALJ to find that the May 9, 2008 ER visit at Montrose Memorial Hospital was not a "true" medical emergency.
However, we note that the ALJ made the following relevant findings of fact with record support. The human resources director referred the claimant to Dr. Smith for treatment. Tr. at 50. The claimant was unable to obtain an appointment with Dr. Smith until May 21, 2008. Tr. at 50. Rather than asking the human resources director for another referral, the claimant decided to seek treatment in the ER at Montrose Memorial Hospital. Tr 51. The ER record reflects that the visit was non-urgent, that the claimant was in no acute distress, that she walked to the ER and that she was still working light duty. Exhibit B at 4-6. The ALJ concluded that the claimant's May 9 visit to the ER did not constitute an emergency. In our view this conclusion is supported by substantial evidence in the record and therefore is binding. Section 8-43-301(8), C.R.S.
IT IS THEREFORE ORDERED that the ALJ's order dated April 28, 2010 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D Baird
____________________________________ Thomas Schrant
TINA POPE, Attn: TINA VAUGHN, 64751 JAY JAY ROAD, MONTROSE, CO, (Claimant).
WILLOW CREEK CARE CENTER, DELTA, CO, (Employer).
THE HARTFORD INSURANCE COMPANY, Attn: JACOB BREJCHA, C/O: CLAIM NO: LEXINGTON, KY, (Insurer).
KILLIAN DAVIS, PC, Attn: AMY K. EATON-FITZPATRICK, ESQ., GRAND JUNCTION, CO, (For Claimant).
TREECE, ALFREY, MUSAT BOSWORTH, PC, Attn: JAMES B. FAIRBANKS, ESQ., DENVER, CO, (For Respondents).
SPECIALTY RISK SERVICES, Attn: KELLY THOMPSON, DENVER, CO, (Other Party).