Opinion
W.C. No. 4-506-060
December 4, 2002
FINAL ORDER
The claimant seeks review of a Corrected Order of Administrative Law Judge Jones (ALJ) which denied his claim for temporary total disability benefits. The claimant argues the ALJ erred in holding the presentation of false documentation concerning eligibility for employment rendered the claimant "responsible for termination of employment" within the meaning of § 8-42-103(1)(g), C.R.S. 2002, and § 8-42-105(4), C.R.S. 2002 (collectively the termination statutes). We affirm.
The facts of this case are undisputed. On May 18, 2001, the claimant sustained a back injury arising out of and in the course of his employment as a mover. The employer provided the claimant light duty work within his restrictions. However, the employer terminated the light duty employment when it discovered that, at the time of hiring, the claimant provided false documentation concerning his eligibility to work in the United States.
Applying the termination statutes, the ALJ found the claimant was "responsible" for the termination and denied temporary total disability benefits from November 9, 2001, to November 22, 2001. Specifically, the ALJ found the claimant engaged in a volitional act by knowingly presenting false documentation to the employer which was "calculated" to cause the employer to believe the claimant was eligible for hire.
On review, the claimant first contends the presentation of false documentation concerning eligibility for employment does not render him "responsible" for the loss of the job within the meaning of the termination statutes. The claimant relies on Colorado Springs Disposal v. Industrial Claim Appeals Office, __ P.3d __ (Colo.App. No. 01CA0464, March 28, 2002), for the proposition that holding him responsible for the termination based on "immigration status" would defeat the purpose of the Act by basing eligibility for benefits on a determination of "fault."
As the respondents argue, we recently held in Gutierrez v. Exempla Healthcare, Inc., W.C. No. 4-495-227 (June 24, 2002), that a claimant who was separated from modified employment for supplying false information at the time of hire engaged in a volitional act which rendered her responsible for the separation under the termination statutes. In Gutierrez, we noted the Colorado Springs Disposal court "held the term `responsible' introduces a concept of fault, which requires, at a minimum, a volitional act." Thus, a claimant is "responsible" for a termination "if she performed some volitional act or exercised some control over the circumstances resulting in the discharge."
The claimant's argument notwithstanding, this result is not inconsistent with the court's holding in Colorado Springs Disposal. In that case, the claimant was terminated for conduct which caused the injury itself. The court reasoned that to interpret the term "responsible" to encompass "an employee's injury or injury-producing activity" would contravene the "Act's major purpose of compensating work-related injuries regardless of fault and would dramatically alter" the principle of "mutual renunciation of common law rights and defenses of employers and employees alike."
Here, the claimant was not discharged because of the injury or for "injury-producing conduct." Instead, the claimant was discharged for engaging in deliberate conduct which the ALJ found was designed to deceive the employer concerning the claimant's eligibility for employment.
Under these circumstances, the denial of temporary disability benefits is consistent with the termination statutes as interpreted by Colorado Springs Disposal. As the court itself recognized, the purpose of the termination statutes was to "overrule" PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995). In PDM Molding the Supreme Court held a claimant who was "at fault" for the loss of employment could still establish a causal link between the injury and the wage loss if the claimant could show that "to some degree" the post-separation wage loss was caused by the injury. As we stated in Gutierrez v. Exempla Healthcare , Inc., supra, the General Assembly adopted the termination statutes to preclude an "ALJ from finding that a claimant's post-separation wage loss is `to some degree' the result of the industrial injury where the claimant is `responsible' for the termination of employment."
Next the claimant contends that interpreting the term "responsible" to include termination based on deliberate concealment of work eligibility "gives rise to a question of [the termination statutes'] constitutionality." According to the claimant, his due process and equal protection rights will be abrogated if his right to sue for injuries is abrogated without providing a "just substitute."
Of course, we cannot determine the constitutionality of the Act. Celebrity Custom Builders v. Industrial Claim Appeals Office, 916 P.2d 539 (Colo.App. 1995). However, as this order may pertain to the issue of constitutionality, we should not be understood to hold the claimant is totally ineligible to receive workers' compensation benefits because of his immigration status. Indeed, as held in Champion Auto Body v. Industrial Claim Appeals Office, 950 P.2d 671 (Colo.App. 1997), injured workers lacking documentation are considered "employees" eligible for benefits. This does not mean the claimant, unlike all other injured workers, is excused from establishing a causal link between the wage loss and the injury, or that his immigration status and eligibility to work may not be considered when determining the eligibility for temporary disability benefits. Cf. Cenvill Development Corp. v. Candelo, 478 So.2d 1168 (Fla.App. 1 Dist. 1985). Undocumented workers should not enjoy a greater right to temporary disability benefits than all other workers who are terminated because they misrepresent some necessary qualification to the employer at the time of hiring. Cf. Del Taco v. Worker's Compensation Appeals Board, 79 Cal.App.4th 1437, 94 Cal.Rptr.2d 825 (2000).
Champion Auto Body v. Industrial Claim Appeals Office, supra, is not authority to the contrary. Champion Auto Body was decided before the termination statutes were enacted, and was governed by the principles announced in PDM Molding. In Champion Auto Body, the ALJ found the claimant's wage loss "was not solely the result of the his work status," but was also partially attributable to the injury. Thus, under PDM Molding, the claimant was entitled to temporary benefits. However, Champion Auto Body in no way holds or implies that a claimant's "work status" may not be considered when determining the cause of post- injury wage loss.
Finally, the claimant makes a policy argument for awarding temporary disability benefits. He reasons that if he is denied benefits under the circumstances, "then all that thousands of employers in Colorado need do is wait for an [undocumented] employee to be injured and then terminate the employee for not being a properly documented worker." According to the claimant, this will encourage the hiring of undocumented workers.
We do not find this argument persuasive enough to alter our interpretation of the termination statutes. First, we need not reach the question of whether a claimant would be considered "responsible" for the termination if the employer knew, or reasonably should have known, the claimant's true status at the time of hiring. Neither do we consider whether wage loss may be said to "result" from termination of an undocumented claimant if the claimant is totally disabled at the time of the discharge. Thus, it may be the effects of our interpretation of the termination statutes is not so dramatic as the claimant asserts.
Further, an employer who continues to employ a claimant after learning the claimant is not legally qualified to work may be subjected to penalties. We do not think the employer should be subjected to the choice of violating the law by continuing to employ the claimant, or paying temporary disability benefits even though the claimant concealed his status from the employer. Del Taco v. Worker's Compensation Appeals Board, supra.
IT IS THEREFORE ORDERED that the ALJ's Corrected Order dated May 9, 2002, 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. 2002. 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 Street, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed December 4, 2002 to the following parties:
Rogelio Godoy, 2311 Kingston St., Aurora, CO 80010
A1 Aurora Relocation Services, 11701 E. 33rd Ave., Aurora, CO 80010
Mike Steiner, Esq., Pinnacol Assurance — Interagency Mail (For Respondents)
Thomas J. Roberts, Esq., 940 Wadsworth Blvd., 4th Floor, Lakewood, CO 80214 (For Claimant)
Gillian L. Madigan, Esq., 600 17th St., #1600N, Denver, CO 80202
By: A. Hurtado