Opinion
W.C. No. 4-376-4170
June 7, 1999.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) insofar as the ALJ denied her claim for temporary total disability benefits after March 4, 1998. We affirm.
The ALJ found the claimant suffered a compensable injury to her right wrist on November 11, 1997, while working for the respondent-employer in quality control. The claimant's job required her to check packaged materials against order forms either visually or using a scan gun. On October 31, 1997, the employer warned the claimant that her work quality did not meet minimal accuracy standards and the claimant was instructed to improve.
As a result of the industrial injury the claimant was temporarily restricted from using the scan gun, and therefore, she was required to visually check orders. Following the injury, claimant was again warned that she making too many mistakes, and consequently, the employer placed the claimant on a ninety day probation. On March 4, 1998, the employer terminated the claimant's employment due to poor performance.
The ALJ determined the claimant was at fault for the employment termination. In so doing, the ALJ rejected the claimant's contention that she lacks the mental ability to properly perform the assigned duties. Therefore, the ALJ denied the claim for temporary total disability benefits after March 4, 1998.
On review, the claimant does not dispute the ALJ's finding that her job was terminated due to poor performance. However, she contends that the evidence compels the finding that she is mentally unable to perform the assigned duties. Therefore, the claimant argues that she is not at fault for the loss of the modified employment, and that the ALJ erroneously denied the claim for temporary total disability benefits after March 4, 1998. We disagree.
To establish her entitlement to temporary total disability benefits the claimant was required to prove a causal connection between the industrial injury and her wage loss. Section 8-43-103(1)(a), 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." If the claimant is determined to be "at fault," the termination severs the causal connection between the injury and the subsequent wage loss. Under these circumstances, the claimant is precluded from receiving further temporary disability benefits unless she reestablishes the requisite causal connection by proving that the injury contributed "to some degree" to the wage loss.
As argued by the claimant, the concept of "fault" involves a volitional act by the claimant or the exercise of a degree of control over the circumstances resulting in the employment termination. Padilla v. Equipment Corp. 902 P.2d 414 (Colo.App. 1994). It follows that a claimant is not at fault for the loss of employment where the termination is due to the claimant's physical or mental inability to perform assigned duties.
The determination of whether the claimant exercised a degree of control over the circumstances resulting in her employment termination depends on the particular facts of the case. 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).
Here, the employer's witness, Steve Paiement, (Paiement) testified that the claimant was discharged due to an excessive number of errors in matching order forms with packaged materials, which prevented the claimant from meeting minimal quality standards during the probation period. (Tr. pp. 47, 48). The claimant testified that the mistakes were due to the change of order numbers which she "didn't understand." (Tr. p. 34). However, the claimant admitted that the employer did not require her to work at any particular speed because the employer was more concerned about the accuracy of the orders. (Tr. p. 26). Consequently, there is substantial evidence to support the ALJ's determination that the claimant was at fault for the employment termination. See Pabst v. Industrial Claim Appeals Office, 833 P.2d 64 (Colo.App. 1992) (claimant at fault for unsatisfactory job performance where claimant knew what was expected and failed to comply).
Contrary to the claimant's contention, the ALJ was not persuaded that the claimant was mentally unable to meet the minimum job requirements and we reject the claimant's contention that the record compels a contrary determination. See Monfort, Inc. v. Rangel, 867 P.2d 122 (Colo.App. 1993) (we cannot substitute our judgment for that of the ALJ concerning the sufficiency and probative weight of the evidence). In reaching this conclusion, we recognize Paiement's statement that the claimant was "careless, or not capable of doing the job." (Tr. p. 51). However, when specifically asked whether he believed the claimant is "incapable" of correctly performing the job, Paiement answered by saying that the job "was not suited" to the claimant. (Tr. p. 51). In any event, the ALJ would not be bound by even unrebutted testimony that the claimant was unable to meet the performance standard. See Levy v. Everson Plumbing Co., 171 P.2d 64, 468 P.2d 34 (1970).
The claimant does not contend that she sustained her burden to prove that her subsequent wage loss is "to some degree" the result of the industrial injury. See PDM Molding, Inc. v. Stanberg,, supra. Consequently, the claimant has failed to establish grounds which afford us a basis for disturbing the ALJ's order.
IT IS THEREFORE ORDERED that the ALJ's order dated September 2, 1998, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
__________________________________ Kathy E. Dean
__________________________________ Dona Halsey
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, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. 1998.
Copies of this decision were mailed June 7, 1999 to the following parties:
Betty Johnston, 3709 E. San Miguel, Colorado Springs, CO 80909
Deluxe/Current Corporation, c/o Current USA Inc., 1005 E. Woodmen Rd., Colorado Springs, CO 80920-3181
Lumbermen's Mutual Casualty Company, Travelers Insurance, P. O. Box 173762, Denver, CO 80217
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909-4349 (For Claimant)
John M. Lebsack, Esq. and Ted A. Krumreich, Esq., 1225 17th St., 28th floor, Denver, CO 80202 (For Respondents)
BY: A, Pendroy