Opinion
W.C. No. 4-751-887.
May 19, 2009.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Krumreich (ALJ) dated December 9, 2008 that denied the respondents' petition to terminate the claimant's compensation. We affirm.
A hearing was held on the issues of whether the claimant's wage loss after May 11, 2008 was caused by her resignation and whether the respondents proved that the claimant was responsible for her termination from employment for purposes of § 8-42-103(1)(g), C.R.S. 2008 and § 8-42-105(4), C.R.S. 2008 (referred to as the "termination statutes"). Following the hearing the ALJ entered findings of fact that for the purposes of this order may be summarized as follows. The claimant sustained a work-related injury to her left ankle on December 10, 2007. She continued in her regular job as a cake decorator until February 18, 2008, when Dr. Sisk restricted her from working. She was released to perform modified work and on March 24, 2008, the employer offered her a temporary alternative position as an operator in the fitting room. She accepted the position but then resigned on April 7, 2008, because she was unable to arrange for daycare for her daughter. She underwent surgery on May 15, 2008 and was unable to work in any capacity beginning on May 11, 2008 and continuing until July 9, 2008, when she was released to work at a job permitting her to sit with minimal walking. The respondents admitted for temporary total disability benefits beginning on May 11, 2008. The claimant did not receive any offers of modified work from the employer following her release to modified work.
On July 14, 2008 the respondents filed a petition to terminate benefits, contending that because the claimant was responsible for the termination of her employment then temporary total disability benefits were not owed. The ALJ credited the testimony of the employer's Human Relations Director that there were no positions that were available within the claimant's work restrictions and that the employer would not hire an employee who had been placed in a "no work" status. Dr. Kinder had stated on October 9, 2008 that the claimant was in such a no work status, and he confirmed that opinion on November 14, 2008. Dr. Hahn evaluated the claimant on August 25, 2008, and stated that she might require further surgery and he recommended that she be "very careful with limited weightbearing."
The ALJ concluded that the claimant was not responsible for her termination from employment and that, in any event, she was unable to work in any capacity following her surgery. Therefore he denied the respondents' petition to terminate temporary total disability benefits. The respondents appealed the ALJ's order and argue that the ALJ's denial of the petition to terminate benefits is unsupported by the law and by substantial evidence in the record. We are unpersuaded that the ALJ committed any reversible error.
Here, the respondents admitted for temporary total disability benefits beginning on May 11, 2008, which was several days prior to her surgery, which undisputedly disabled her from performing her regular work for some period of time. In general, once the respondents admit liability for temporary disability benefits, payments must continue until terminated in accordance with § 8-42-105(3). Colorado Compensation Insurance Authority v. Industrial Claim Appeals Office, 18 P.3d 790 (Colo.App. 2000). Sections 8-42-105(3)(a) to (c) provide that temporary total disability benefits may be terminated where the claimant reaches maximum medical improvement, where the claimant returns to regular or modified work, or where the attending physician gives the claimant a written release to return to regular work. Section 8-42-105(3)(d)(I), which is arguably more pertinent to the facts of this case, provides that temporary disability benefits terminate when "the attending physician gives the claimant a written release to return to modified employment, such employment is offered to the employee in writing, and the employee fails to begin such employment."
It appears undisputed that none of these conditions applied and, therefore, the temporary total disability benefits paid pursuant to the general admission dated May 28, 2009 could not be terminated pursuant to § 8-42-105(3). However, the respondents argue that the benefits could be properly terminated pursuant to the termination statutes. These statutes generally bar a claimant from receiving temporary total disability benefits where she is at fault for the termination of her employment. Sections 8-42-105(4) and 8-42-103(1)(g) 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). An individual acts volitionally if she is able to exercise some degree of control in the circumstances which caused the separation. Gonzales v. Industrial Commission, 740 P.2d 999 (Colo. 1987); Velo v. Employment Solutions Personnel, 988 P.2d 1139 (Colo.App. 1998). 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 in this regard if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2008; City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). Again, this standard of review is narrow and requires us to view the evidence in the light most favorable to the prevailing party. 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 concluded that the claimant was not responsible for her termination from employment, because it was caused by her inability to locate daycare for her child. The ALJ reasoned that because the claimant's resignation was compelled by her need to care for her child, it was not the product of volitional action within the meaning of the termination statutes. In this regard we note that the claimant testified that she was unable to locate any daycare facility that could accommodate her child's needs during the hours the claimant worked. Tr. at 37-38. In our view the claimant's testimony constitutes substantial evidence supporting the ALJ's findings, and we are unpersuaded to disturb his conclusion that the claimant was not responsible for the termination of her employment because she did not exercise sufficient control over the circumstances causing her to resign.
We note that the respondents have argued that the claimant conceded at the hearing that she was responsible for her termination. Tr. at 9, 70-71. The claimant's counsel stated that he would "assume" that "for purposes of argument today" the claimant was barred from receiving temporary total disability benefits because of her voluntary resignation. Tr. at 70-71. We doubt that this statement is such a "formal, deliberate declaration" from the claimant's counsel as is required to constitute a judicial admission. Kempter v. Hurd, 713 P.2d 1274, 1279 (Colo. 1986). Moreover, we similarly doubt that the statements were sufficiently "unequivocal" to bind the claimant on the question whether she was responsible for her termination. See Salazar v. American Sterilizer Co., 5 P.3d 357 (Colo.App. 2000); Rojhani v. Meagher, 22 P.3d 554 (Colo.App. 2000).
In any event, it is unnecessary for us to resolve this issue, because we agree with the ALJ that the respondents were not entitled to terminate temporary total disability even if the claimant was responsible for her termination from employment. In this regard the ALJ relied on the ruling in Anderson v. Longmont Toyota Inc., 102 P.3d 323 (Colo. 2004). We agree that Anderson supports the ALJ's conclusion that, even if she had been responsible for her termination from employment, the respondents could not terminate temporary total disability benefits paid after a worsening when her condition improved.
The Supreme Court of Colorado in Anderson determined that the bar to receipt of temporary disability benefits caused by an employee's responsibility for termination of employment is not permanent. In Anderson and in the present case the claimant experienced a worsened condition that required surgery and prevented her from working. The court held in Anderson that because the worsened condition and not the termination of employment caused the wage loss, the claimant was entitled to temporary disability benefits.
We have previously ruled that Anderson should not be read as holding that the original basis under § 8-42-105(4) for termination of the claimant's TTD is "revived" after the claimant's physical restrictions return to those in effect prior to the time the claimant was responsible for her termination from employment. Caraveo v. David J. Joseph Co., W.C. No. 4-358-465 (September 24, 2008); Fantin v. King Soopers, W.C. No. 4-465-221 (February 15, 2007). Therefore, we agree with the ALJ's analysis here, in which he concluded that the claimant's alleged improvement did not warrant termination of her temporary total disability benefits on the ground that the causal connection between the wage loss and her termination for fault was "reestablished." The ALJ correctly interpreted Anderson to require payment of temporary total disability benefits after the claimant's worsened condition caused by her surgery. Once those benefits were properly admitted to by the respondents, they could not then be terminated under Anderson because the claimant's worsened condition improved to the state it was at the time of the claimant's termination from employment. Accordingly, we are unpersuaded to disturb the ALJ's order denying the respondents' petition to terminate benefits.
IT IS THEREFORE ORDERED that the ALJ=s order dated December 9, 2008, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ John D. Baird
_______________________ Curt Kriksciun
TRISHA SMITH, CRAIG, CO, (Claimant).
WAL MART, Attn: POLLY KENNEDY, CRAIG, CO, (Employer).
AMERICAN HOME ASSURANCE, Attn: LISA SMITH, C/O: CLAIMS MANAGEMENT, INC., BENTONVILLE, AR, (Insurer).
WITHERS, SEIDMAN, RICE MUELLER, PC, Attn: DAVID MUELLER, ESQ., GRAND JUNCTION, CO, (For Claimant).
CLIFTON, MUELLER BOVARNICK, PC, Attn: M FRANCES MCCRACKEN, ESQ., DENVER, CO, (For Respondents).