Summary
In Dickerson v. Norwest Corporation, W.C. No. 4-288-686 (December 14, 1998) and Gonzales v. Vaughn Concrete Products, Inc., W.C. No. 4-329-353 (July 15, 1998), we held that Laurel Manor is restricted to cases involving offers of employment under § 8-42-105(3)(d), and does not apply to the termination of benefits under § 8-42-105(3)(b).
Summary of this case from In re Martinez, W.C. NoOpinion
W.C. No. 4-288-686
December 14, 1998
ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge Gandy (ALJ) which denied her request for temporary total disability benefits commencing September 8, 1997. We set aside the order, and remand for entry of a new order.
The claimant suffered a compensable back injury in 1995 while working as a teller. As a result of the injury the claimant is temporarily disabled from performing her regular employment. In June 1996, the claimant accepted the respondents' offer of part-time, employment within her medical restrictions. Consequently, the respondents terminated temporary total disability benefits and admitted liability for temporary partial disability benefits. The claimant continued to perform part-time, modified employment until September 8, 1997.
On September 1, 1997, the claimant failed to show up for work. On September 2 the claimant gave the employer two weeks notice of her intent to resign. The claimant later changed her mind and attempted to withdraw the resignation. However, the employer refused to allow the claimant to withdraw the resignation, and her employment was terminated.
The ALJ found that, pursuant to § 8-42-105(3)(b), C.R.S. 1995, [amended in 1996], the respondents properly terminated temporary total disability benefits when the claimant returned to modified employment. The ALJ also found that the claimant's employment termination was due to the claimant's voluntary resignation and not the industrial injury. Further, the ALJ determined that the claimant failed to prove that the offer of modified employment was unreasonable. Therefore, the ALJ determined the claimant is not entitled to temporary disability benefits after the employment termination. In so doing, the ALJ expressly relied on Laurel Manor Care Center v. Industrial Claim Appeals Office, 964 P.2d 589 (Colo.App. 1998), cert denied, 98SC273, October 19, 1998.
I.
On review the claimant contends that Laurel Manor is not applicable to the circumstances of this case because here, unlike the facts in Laurel Manor, the claimant began an offer of modified employment. The claimant argues that the claim is governed by the principles established in PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995). We agree.
To receive temporary disability benefits a claimant must establish a causal connection between the injury and the loss of wages. Section 8-42-103(1), C.R.S. 1998. In PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995), the Supreme Court held that where a claimant is injured, and is "subsequently terminated from the employment during which the injury occurs, an initial determination must be made as to whether the termination was for fault." PDM Molding, Inc. v. Stanberg, 898 P.2d at 849. If the claimant is determined to be "at fault," the claimant is precluded from receiving further temporary disability benefits unless she reestablishes a causal connection between the injury and the post-termination wage loss by proof that the industrial disability contributed "to some degree" to the subsequent wage loss. Furthermore, PDM holds that if the claimant reestablishes a causal connection between the industrial injury and the wage loss, temporary disability benefits shall be paid until "one of the four statutory criteria set forth is § 8-42-105(3) is satisfied." 898 P.2d at 549.
Section 8-42-105(3)(b) provides that temporary total disability benefits terminate when the claimant "returns to regular or modified employment." Section 8-42-105(3)(d), C.R.S. 1995 [amended in 1996] terminates temporary total benefits when the claimant "fails to begin" a written offer of modified employment. Similarly, § 8-42-106(2)(b)(I), C.R.S. 1995 [amended in 1996], provides that the failure to begin a written offer of modified employment triggers the termination of temporary partial disability benefits.
Laurel Manor Care Center v. Industrial Claim Appeals Office, supra, involved a temporarily disabled claimant who returned to work on September 13, 1995, but left because she believed the employer was requiring her to perform duties beyond her restrictions. On September 14, 1995, the claimant returned to the job site and was presented with a written offer of employment listing duties within her medical restrictions. However, the claimant did not return to work after being presented with the offer.
The Court of Appeals concluded that the claimant failed to prove that the written offer of modified employment on September 14 exceeded her restrictions. Therefore, the court held that the claimant's failure to begin the modified employment triggered the termination of temporary total disability benefits under § 8-42-105(3)(d). The court further held that the PDM analysis did not apply, and that the claimant was not entitled to further temporary disability benefits regardless of whether the subsequent wage loss was "to some degree" the result of the industrial injury.
In Gonzales v. Vaughn Concrete Products, Inc., W.C. No. 4-329-353 (July 15, 1998), we concluded that Laurel Manor is restricted to cases involving offers of employment under § 8-42-105(3)(d), and does not apply to the termination of benefits under § 8-42-105(3)(b). We held that where the claimant returns to modified employment and subsequently loses that employment, the claimant's entitlement to further temporary disability benefits is governed by PDM. We specifically noted that the holding in Laurel Manor was restricted to the "particular section" at issue, to wit § 8-42-105(3)(d). 964 P.2d at 591. The basis of the court's reasoning in Laurel Manor is that, in cases of refusal to accept a written offer, the claimant could always defeat a claim for termination by refusing the offer and pointing out the continuing relationship between the wage loss and the injury.
The respondents contend that we have misconstrued Laurel Manor . However, we are not persuaded to depart from our conclusions in Gonzales. In fact, we note that the claimant in Laurel Manor returned to modified employment prior to the written offer of modified employment. However, the court held that the event which barred the claimant from receiving further benefits under a PDM analysis was the claimant's failure to begin the written offer of modified employment. Thus, Laurel Manor does not purport to apply to the termination of benefits under § 8-42-105(3)(b). Conversely, PDM states that it applies to the actual loss of employment out of which the injury arose.
Furthermore, the Court of Appeals has repeatedly applied a PDM analysis to determine whether a temporarily disabled claimant who returns to modified employment and is not at fault for the loss of that employment is entitled to further temporary disability benefits. See Black Roofing, Inc. v. West, ___ P.2d ___ (Colo.App. No. 98CA0176, August 6, 1998) ; Champion Auto Body v. Industrial Claim Appeals Office, 950 P.2d 671 (Colo.App. 1997). More importantly, in Lindner Chevrolet v. Industrial Claim Appeals Office, 914 P.2d 496 (Colo.App. 1995), rev'd, on other grounds, Askew v. Industrial Claim Appeals Office, 927 P.2d 1333 (Colo. 1996) ; Padilla v. Digital Equipment Corp., 908 P.2d 1185 (Colo.App. 1995); Lamb v. R B Trucking, Inc., W.C. No. 4-267-334 (May 21, 1996) , aff'd., R B Trucking, Inc., v. Industrial Claim Appeals Office, (Colo.App. No. 96CA1020, June 5, 1997) (not selected for publication) ; and Brito v. The Denver Post, W.C. No. 4-266-095, (October 29, 1996), aff'd., The Denver Post v. Industrial Claim Appeals Office, (Colo.App. No. 96CA2057, March 20, 1997) (not selected for publication), the court applied a PDM analysis to uphold awards of temporary disability benefits to claimants who returned to modified employment and were at fault for the subsequent loss of that employment. Accordingly, we are not persuaded that Laurel Manor is intended to apply to cases involving § 8-42-105(3)(b).
We recognize that the Supreme Court denied the petition for writ of certiorari in Laurel Manor. However, to the extent there is a conflict between the holding of the Court of Appeals in Laurel Manor and the Supreme Court's holding in PDM, we shall follow PDM. See Menefee v. City and County of Denver, 190 Colo. 163, 544 P.2d 382 (1976) (denial of petition for certiorari discretionary and not a determination on the merits). Furthermore, we decline to extend Laurel Manor where, as here, the facts are different.
Here, as in Gonzales, the claimant's temporary total disability benefits were terminated when the claimant returned to modified employment, and the termination was not the result of the claimant's failure to begin a written offer of modified employment. The claimant continued modified employment until September 1997. During that time there was no written offer of modified employment and § 8-42-105(3)(d) was not implicated. Therefore, the ALJ erroneously relied on Laurel Manor to find that the claimant is not entitled to temporary disability benefits after the employment termination. Rather, the resolution of the claim for temporary total disability benefits requires the ALJ to apply the principles established in PDM.
II.
The claimant concedes that the ALJ found her to be "at fault" for the loss of the part-time, modified employment. However, the claimant contends that the voluntary resignation was not voluntary. In support, the claimant asserts that the resignation was the result of a psychological injury which caused her to overreact and prematurely resign. The claimant also contends that because the employer refused to allow her to withdraw her resignation, her employment termination was not due to a voluntary resignation. Further, the claimant contends that the employment termination was a "pretext" by the employer to get rid of her because she was disabled. Therefore, the claimant argues the ALJ erred in finding she was at fault for the employment termination. We disagree.
"Fault" involves a volitional act by the claimant or the claimant's exercise of a degree of control over the circumstances resulting in the termination. Padilla v. Equipment Corp. 902 P.2d 414 (Colo.App. 1994). Resolution of this issue is dependent on the specific facts of the claimant's employment separation. Padilla v. Digital Equipment Corp., supra. Consequently, we must uphold the ALJ's determination if supported by substantial evidence in the record, and the ALJ's plausible inferences drawn from conflicts in the evidence. Section 8-43-301(8), C.R.S. 1998; General Cable Co. v. Industrial Claim Appeals Office, 878 P.2d 118 (Colo.App. 1994). The substantial evidence standard requires that we defer to the ALJ's credibility determinations, and his assessment of the sufficiency and probative weight of the evidence. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). In addition, where the evidence is subject to conflicting inferences, it is the ALJ's sole prerogative to resolve the conflict. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
The ALJ found that the claimant was unhappy with her job before September 1, 1997, and had planned to leave. The ALJ also found that the claimant was physically capable of performing the part-time modified employment for over a year. Consequently, the ALJ determined that the employment determination was due to the claimant's voluntary actions and not the industrial injury. The ALJ's findings of fact are plausible inferences from the record, and therefore, must be upheld.
However, because the ALJ erroneously relied on Laurel Manor, he did not determine whether the claimant's wage loss after September 8, 1997 was "to some degree" the result of the industrial injury. Consequently, we must set aside the order and remand the matter for additional findings of fact and conclusions of law which resolve this issue.
In remanding the matter, we note the respondents' contention that the claimant failed to prove that the industrial injury is "to some degree" the cause of her wage loss after September 8, 1997, because the claimant failed to conduct a reasonable job search. However, in Black Roofing, Inc. v. West, supra, the court held that a claimant is not required to present "proof of a reasonable but unsuccessful job search in order to establish that a post-termination wage loss is in some degree caused by the injury." To the contrary, the court held that evidence of a job search is just one factor the ALJ may consider in determining whether the claimant's wage loss is "to some degree" the result of the industrial injury.
IT IS THEREFORE ORDERED that the ALJ's order dated June 11, 1998, is set aside, and the matter is remanded to the ALJ for the entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
Copies of this decision were mailed December 14, 1998 to the following parties:
Dianne L. Dickerson, 2200 Smallwood Drive, Fort Collins, CO 80528
Norwest Bank Colorado, 255 2nd Ave., South, Minneapolis, MN 55401-2120
Continental Insurance Co., — The Travelers Insurance, Attn: Karen B. Parker, P.O. Box 173762 Denver, CO 80217-3762
Michael P. Dominick, Esq., 250 Arapahoe Ave., #301, Boulder, CO 80302 (For Claimant)
Tama L. Levine, Esq., 1515 Arapahoe St., Tower 3, #600, Denver, CO 80202 (For Respondent)
BY: ____________