Opinion
W.C. No. 4-676-020.
November 16, 2006.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) dated June 29, 2006 that ordered the respondents to pay temporary total disability benefits from January 1, 2006 to January 8, 2006, and that denied those benefits after January 9, 2006, based on the claimant's termination from employment. We affirm.
A hearing was held on the issue of the claimant's entitlement to temporary total disability benefits, following which the ALJ entered findings of fact that may be summarized as follows. On July 6, 2005 the claimant began work for the employer as a certified nursing assistant (CNA). Although the claimant had completed a CNA training program, she did not yet have a Colorado license permitting her to perform that work. The employer's procedures required that anyone hired as a CNA must obtain a license within 120 days after beginning employment. The claimant took the licensing examination in October 2005; however, she failed a portion of the test and was not granted her license. On October 9, 2005, the claimant sustained a compensable injury to her right shoulder, which temporarily disabled her from performing her regular job. On October 11, 2005, she returned to modified work, pursuant to an agreement with the employer that her "transitional job duties" would terminate on January 11, 2006. The employer had a policy of providing modified work for 90 days, after which the employer placed the employee on a leave of absence. In December 2005, the employer discovered that the claimant had not obtained her CNA license and the claimant was suspended as of January 2, 2006 with the condition that by January 9, 2006, she must have made arrangements to retake the licensing examination on some definite date. The claimant failed to comply with that condition by January 9th and the employer terminated her employment as of that date. The ALJ found that she was responsible for the termination from employment.
Based on his factual findings, the ALJ awarded temporary total disability benefits to the claimant beginning on January 1, 2006 and terminating on January 8, 2006. Because the claimant was responsible for her termination from employment on January 9th, the ALJ denied temporary total disability benefits after that date.
The claimant appealed and argues that the claimant's wage loss after January 11, 2006 was caused by the injury and the absence of modified work pursuant to the employer's policy, and not by her termination from employment.
Sections 8-42-105(4), C.R.S. 2006, and 8-42-103(1)(g), C.R.S. 2006 (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 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. 2004; City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). 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, 914 P.2d 411 (Colo.App. 1995). Here, the ALJ's findings that the claimant exercised some control over the circumstances that led to her failure to obtain certification as a CNA are supported by the record. Those findings also support the conclusion that the claimant was at fault for her termination from employment and temporary total disability benefits were properly denied under the termination statutes.
Contrary to the claimant's argument, a different result is not dictated by Anderson v. Longmont Toyota Inc., 102 P.3d 323 (Colo. 2004). In that case the Supreme Court held that the termination statutes are not a permanent bar to temporary disability benefits when the worsening of a prior work-related injury causes the claimant's wage loss. In Anderson, which was consolidated with the similar case Krause v. Sorter Construction, the claimant sustained a low back injury and returned to modified light duty. He resigned his position due to a dispute with the employer and began work with a subsequent employer under the same physical restrictions. His condition worsened and more severe restrictions were imposed, which required him to resign his subsequent work. The then-current restrictions would have precluded him from performing his modified work at Longmont Toyota; however, the respondents denied temporary total disability benefits on the grounds that the termination from employment was a permanent bar to the receipt of benefits.
The supreme court rejected that position, holding that "section 8-42-105(4) bars TTD wage loss claims when the voluntary or for-cause termination of the modified employment causes the wage loss, but not when the worsening of a prior work-related injury incurred during that employment causes the wage loss." Anderson, 102 P.3d at 326. In reaching this conclusion, the court relied upon the statutory authority to reopen cases for a worsened condition, noting that if the General Assembly had intended to modify the reopening provisions it would have expressly done so. The court then reiterated that the termination statutes were only intended to "weed out wage loss claims subsequent to voluntary or for-cause termination of modified employment that do not involve a worsened condition." Anderson, 102 P.3d at 330 (emphasis added).
Here, as we understand the claimant's argument, she is not contending that her condition worsened subsequent to her termination for cause. Rather, she argues that pursuant to the employer's articulated policy she would have been denied modified work after January 11, 2006, and that, therefore, the wage loss for that period would have been caused by her injury rather than by her termination from employment. We do not believe that Longmont Toyota Inc. supports that result. There may be numerous factual circumstances where the bar to temporary total disability benefits imposed by the termination statutes might arguably be lifted. However, the only such circumstance addressed in Longmont Toyota was the worsening of the claimant's condition and as we read that opinion temporary total disability may only be reinstated where the claimant has worsened. Accordingly, we reject the claimant's argument that the absence of modified work in the future reestablished the claimant's right to temporary total disability following the claimant's termination for cause.
IT IS THEREFORE ORDERED that the ALJ's order dated June 29, 2006, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Curt Kriksciun
Carmen Moreno, Valencia, CA, Aspen Living Center, Colorado Springs, CO, ESIS, Sandra Shefman, Portland, OR, Clifton, Mueller, Bovarnick, P.C., Erica A. Weber, Esq., Denver, CO, (For Respondents)
Heuser Heuser, LLP, Gordon Heuser, Esq., Colorado Springs, CO, (For Claimant)