Opinion
W.C. No. 4-487-966
November 1, 2002
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Muramoto (ALJ) which awarded temporary total disability benefits commencing March 1, 2001. The respondents contend the evidence and the law compelled a denial of the benefits because the claimant was "responsible" for a loss of employment within the meaning of § 8-42-103(1)(g), C.R.S. 2002, and § 8-42-105(4), C.R.S. 2000) (collectively the termination statutes). We affirm.
The claimant, a road construction laborer, sustained a compensable back injury on January 4, 2001. The claimant was restricted from performing his regular employment and remained off of work until January 22, 2001, when he returned to modified employment.
The modified employment was offered to the claimant in writing on January 17, 2001. The offer was for light duty work within restrictions approved by Dr. Smith, one of the treating physicians. At that time, the claimant was restricted to lifting no more than 10 pounds, precluded from crawling, kneeling, and squatting, and limited to "moderate" bending at the waist.
The ALJ found that when the claimant returned to work he was sometimes assigned to wash highway barrels and cones. Washing barrels required the claimant to bend at the waist when washing the bottom of the barrels, and to lift mops which weighed more than 10 pounds when wet. The ALJ credited the claimant's testimony that performing this duty caused the claimant to experience "tremendous pain a great deal of the time."
The ALJ further found the claimant was terminated from employment on February 28, 2001, for insubordination, failure properly to perform duties, absenteeism and tardiness. The "insubordination" resulted from the claimant's leaving the job site on February 28 with out informing the project superintendent (Powley). However, the ALJ credited the claimant's testimony that he was in too much pain to perform the assigned task of barrel washing, and left the job site because he needed to see a doctor. The ALJ also found Powley was not on the job site at the time the claimant left. Finally, when the claimant was seen by a physician on February 28, he was restricted from any bending.
Under these circumstances the ALJ concluded the respondents failed to prove the claimant was "responsible" for the loss of employment within the meaning of the termination statutes. Specifically, the ALJ determined the pain caused by the industrial injury sometimes rendered the claimant unable to perform the duties of the modified employment, and the claimant's inability to perform the work was not the result of volitional conduct. The ALJ also found the respondents failed to prove the claimant was responsible for the other reasons which the employer cited as the basis for the separation from employment.
I.
The respondents contend the evidence does not support the ALJ's finding the claimant was not responsible for the termination from employment. Specifically, the respondents contend the ALJ erred in finding the barrel washing exceeded the claimant's restrictions. Hence, they reason the claimant's failure to perform these duties, especially on February 28, demonstrates volitional conduct justifying the termination. In support of this proposition the respondents point out the medical restriction against bending was not imposed until after the claimant left work on February 28. We are not persuaded.
The termination statutes provide that if 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, ___ P.3d ___ (Colo.App. No. 01CA0464, March 28, 2002), the court held the term responsible "appears to introduce into the Act the limited concept of 'fault' used in termination cases before the supreme court's decision in" PDM Molding Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995). Under this standard, the "fault" determination depends on whether the claimant performed some volitional act or otherwise exercised a degree of control over the circumstances resulting in the termination. See Padilla v. Digital Equipment Corp., 902 P.2d 414, 416 (Colo.App. 1994), opinion after remand, 908 P.2d 1185 (Colo.App. 1995); Pace v. Commercial Design Engineering, W.C. No. 4-451-277 (May 15, 2001). Usually, the existence of "fault" is a question of fact for determination by the ALJ. See Pace v. Commercial Design Engineering, supra.
In Bonney v. Pueblo Youth Service Bureau, W.C. No. 4-485-720 (April 24, 2002), we considered the applicability of the termination statutes in a case where the ALJ found the injury prevented the claimant from returning to her usual job, and caused the claimant to leave work and sustain a wage loss. In that case, we held as a matter of law the claimant was not "responsible" for the termination, and the termination statutes did not preclude an award of temporary disability benefits. We reasoned that, in the unemployment context, a claimant is not considered to be "at fault" for failure to comply with the employer's absence policy if the claimant is not physically able to notify the employer. Pepsi-Cola Bottling Co. v. Division of Employment and Training, 754 P.2d 1382 (Colo.App. 1988). Similarly, in Bestway Concrete v. Industrial Claim Appeals Office, 984 P.2d 680 (Colo.App. 1999), a claimant was not held to be at fault for "popping the clutch" on a truck where the injury rendered the claimant too weak to operate the clutch. More importantly, we noted that in Colorado Springs Disposal v. Industrial Claim Appeals Office, supra, the court concluded the term "responsible" should not be construed in a manner inconsistent with the "overall scheme of the Act." Accordingly, we reasoned that holding the claimant "responsible" for quitting employment which the injury prevents the claimant from performing would be inconsistent with the statutory scheme. This is true because the very purpose of temporary disability benefits is to compensate for a temporary loss of wages which occurs when the claimant is physically unable to perform the pre-injury employment. Schlage Lock v. Lahr, 870 P.2d 615 (Colo.App. 1993). In Bonney, we stated that even the most stringent definition of fault permits an award of temporary disability benefits where a physical inability to continue work is caused by the injury. See Monfort v. Husson, 725 P.2d 67, 70 (Colo.App. 1986). Finally, we observed that if an employer wishes to avoid the payment of temporary disability benefits to a claimant who has quit work because she is no longer able to perform it, the employer may do so by offering modified employment under § 8-42-105(3), C.R.S. 2002.
Because the question of whether a claimant is "at fault" for the loss of employment is a factual question, we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2002. This standard of review requires us to defer to the ALJ's resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). To the extent a witness makes inconsistent statements, the ALJ may resolve the inconsistency by crediting part or none of the testimony. Johnson v. Industrial Claim Appeals Office, 973 P.2d 624 (Colo.App. 1997).
Here, the essence of the claimant's testimony was that washing barrels required some bending at the waist, and this bending caused pain which, on several occasions including February 28, prevented him from performing the task. Although the claimant's testimony contained some inconsistencies, the portion credited by the ALJ is amply supported by the record. (Tr. Pp. 62-64, 66, 70-71, 73). Further, although the medical records do not reveal the imposition of a bending restriction between January 17 and February 28, the ALJ found a bending restriction was imposed on February 28 when the claimant visited the doctor. On this state of the evidence the ALJ plausibly concluded the claimant was actually disabled from bending during the modified employment, but the physicians did not initially recognize the need for imposing a formal restriction until February 28. This evidence supports the conclusion the claimant was required to perform tasks beyond his physical capacity, and, therefore, was not "at fault" or "responsible" for the loss of employment because he was discharged for not performing duties which he was physically unable to perform.
Some evidence, including that cited by the respondents, might support a contrary conclusion. However, we may not substitute our judgment for that of the ALJ concerning the weight of the evidence or the inferences to be drawn from this record.
II.
The respondents contend the ALJ erred in failing to determine whether the claimant was at fault for other actions which the employer cited as reasons for the termination. These included failure properly to perform duties and unexcused absences and tardiness. We conclude the ALJ's findings are adequate to support appellate review under § 8-43-301(8).
In this regard we note the ALJ is not required to address evidence and inferences which she does not find to be dispositive of the issues involved. Rather it is sufficient if the ALJ enters findings of fact and conclusions of law which indicate the factual and legal bases of the award. Evidence not addressed is considered to have been rejected. See Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000).
As the ALJ noted in Finding of Fact 11, Powley could not identify any specific instances where the claimant failed properly to perform assigned duties. (Tr. p. 48). Thus, the ALJ presumably rejected this alleged misconduct as the basis for finding the claimant was at fault for the discharge.
As the ALJ also found, the claimant was frequently absent for medical reasons during the period of modified employment. Further, the claimant testified that other absences were either weather-related or authorized by the employer. (Tr. pp. 80-81). The employer's witness failed to provide documentation regarding specific days when the claimant was absent. (Tr. p. 27). Under these circumstances, the ALJ implicitly rejected the respondents' evidence that the claimant was responsible or at fault for any absences which motivated the employer to terminate the employment. Similarly, although the claimant was tardy on February 28, the ALJ implicitly concluded this was not the basis of the termination. Indeed, the bulk of the employer's evidence indicated the reason for the discharge involved the claimant's alleged "insubordination" in leaving the job site to seek medical attention.
III.
The respondents next challenge the sufficiency of the evidence to support particular findings of fact. We conclude the disputed findings are either supported by the evidence or, at worst, constitute harmless error. See § 8-43-310, C.R.S. 2002 (errors disregarded on appeal to court unless party damaged thereby).
The respondents assert that Finding of Fact 5 mischaracterizes Powley's testimony because there was no evidence claimant had to squat in order to perform his duties. The respondents' argument notwithstanding, the claimant testified he was required to squat. (Tr. p. 78). However, even if the claimant did not squat, the ALJ found he was not physically able to bend and wash the barrels. Thus, we do not believe Finding of Fact 5, concerning Powley's understanding of the claimant's duties, is critical to the order and, at most, amounts to harmless error.
With regard to Finding of Fact 12, we do not understand the ALJ to have found that crossing the road or walking down hills violated the claimant's restrictions. We have already addressed the evidence which demonstrates the claimant was required to bend in order to clean the barrels, and was disabled from doing so. Further there is evidence from the respondents' own witness from which it could be inferred the claimant used "mops" or "long brushes" to clean the barrels. (Tr. p. 43). In any event, the claimant testified he was required to mop a floor with a mop which weighed more than ten pounds when wet. It was for the ALJ to resolve the inconsistencies in the claimant's testimony.
Finally, even if Finding of Fact 7 overstates the number of medical appointments, we do not consider the error fatal to the order. It is clear, as the respondents admit, the claimant attended numerous medical appointments during the modified employment. The significance of this evidence relates to the respondents' assertion the claimant was discharged for attendance problems. Regardless of the actual number of medical appointments, the ALJ determined the claimant was not "responsible" for the termination based on his attendance at these appointments.
Insofar as the respondents make other arguments, we find them to be without merit.
IT IS THEREFORE ORDERED that the ALJ's order dated February 13, 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, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed __________November 1, 2002 _________to the following parties:
Sammie Windom, 4296 Sepulveda Ave., #116, San Bernadino, CA 92404
Lawrence Construction Company, 9002 N. Moore Rd., Littleton, CO 80125-9517
Zurich Insurance, P. O. Box 20048, Kansas City, MO 64195
Robert J. Erickson, Esq., 3515 S. Tamarac Dr., #200, Denver, CO 80237 (For Claimant)
Daniel F. O'Neil, Esq., 1801 Broadway, #1500, Denver, CO 80202 (For Respondents)
BY: A. Hurtado