Opinion
W.C. No. 4-319-476
February 26, 1998
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Friend (ALJ) which required them to pay temporary total disability benefits commencing November 8, 1996. We affirm.
On October 10, 1996, the claimant suffered a compensable back injury while working as a pipe fitter for the respondent-employer. The injury was treated by Dr. Tentori who restricted the claimant to modified work. The claimant returned to work for the respondent-employer performing modified work until November 7, 1996, when he was discharged for drinking alcohol on company time.
Thereafter, the claimant was unable to find employment because the duties of his regular employment exceeded the medical restrictions imposed by Dr. Tentori. Consequently, the claimant sought an award of temporary total disability benefits.
On review the applicable law is undisputed. To receive temporary disability benefits a claimant must establish a causal connection between the industrial injury and the temporary loss of wages. In PDM Molding, Inc. v. Stanberg, 898 P.2d 542, 549 (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." To be "at fault" the claimant must perform a volitional act or exercise some control over the circumstances resulting in the employment termination. Padilla v. Digital Equipment Corp., 902 P.2d 414 (Colo.App. 1994).
Further, PDM holds that if the claimant is found to be "at fault," the employment 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 he reestablishes the causal connection by proving that the industrial injury contributed "to some degree" to his wage loss after the termination.
Here, the respondent-employer discharged the claimant after receipt of a report from Dr. Tentori which indicated that the claimant had alcohol on his breath during a medical exam on November 6, 1996. The claimant testified that late on the afternoon of November 6 he left work, went home to change his clothes and had a beer before driving to Dr. Tentori's office. He stated that he did not consider having a beer to be drinking on company time because he was not at the work site, and wasn't going to return to the work site after the appointment with Dr. Tentori.
Expressly relying upon on our conclusions in Castillo v. Monfort, W.C. No. 4-185-214, July 1, 1994, the ALJ determined that where a termination is based upon several incidents, the final incident is the one that "counts" and is "of key or crucial importance" in determining whether the claimant was "at fault." Accordingly, the ALJ found that the incident on November 6 was the critical incident in the claimant's termination. Further, the ALJ found that the termination was not due to a volitional act by the claimant, because the claimant did not know that having a beer at home before the medical appointment could result in his discharge. Therefore, the ALJ determined that the claimant was not "at fault."
In any event, the ALJ determined that the industrial disability contributed to the claimant's post-separation wage loss. Therefore, the ALJ awarded temporary total disability benefits commencing November 8, 1996.
On review, the respondents contend that the ALJ misconstrued Castillo by giving decisive weight to the November 6 incident, and failed to consider the "totality of circumstances" in determining that the claimant was not at fault for the termination. The respondents contend that the claimant's discharge was not based solely on the November 6 incident, but also on prior reports that he smelled of alcohol on the job site. Therefore, the respondents argue that under the totality of circumstances the claimant was "at fault." We reject this argument.
As stated in Castillo, the proximate cause of the claimant's discharge is determinative of whether the claimant was "at fault." See PDM Molding, Inc. v. Stanberg, supra. In Castillo, the claimant was discharged from modified employment for exceeding the number of absences permitted under the employer's attendance policy. An ALJ determined that the proximate cause of the claimant's discharge was her final absence which occurred because the claimant was tired and did not want to go to work after trying to retrieve her car from a friend who was incarcerated. Because the Castillo claimant was aware that her job was in jeopardy due to her prior absences, the ALJ inferred that the claimant acted volitionally in causing the final absence which resulted in her discharge.
In Castillo v. Monfort, supra, we concluded that the record supported the ALJ's determination that the proximate cause of the termination was the final absence, and that the claimant was at fault for that absence. Therefore, we upheld the ALJ's order which denied the claimant's request for temporary disability benefits in connection with her subsequent wage loss.
Here, the ALJ expressly recognized and credited the evidence that the respondents had reports that the claimant smelled of alcohol on the job site before November 7, 1996. (Finding of Fact 11). Thus, the ALJ explicitly considered the totality of circumstances in resolving the fault issue.
However, the ALJ found that the record supports the finding that the claimant was not made aware of the prior reports until November 7, 1996, and this determination is supported by the record. (Tr. pp. 40, 71-72, 85, 87, 93, 96, 99). Further, there is no evidence that the claimant was warned that his job was in jeopardy due to reports that he smelled of alcohol at the job site. Under these circumstances, the ALJ could reasonably infer that, but for the incident on November 6, the prior reports would not have resulted in the claimant being discharged.
It follows that the record supports the ALJ's finding that the proximate cause of the claimant's termination was incident on November 6, 1996. Moreover, the claimant's testimony is sufficient to support the finding that she did not volitionally drink "on company time" on November 6. Consequently, we must uphold the ALJ's determination that the claimant was not "at fault" for the termination.
In view of the ALJ's finding that the claimant was not "at fault," the termination did not sever the causal connection between the industrial injury and the claimant's subsequent wage loss. Therefore, the ALJ was not required to consider the second part of the PDM test.
Nevertheless, even if the ALJ erroneously determined that the claimant was not "at fault" for the employment separation, we perceive no error in the ALJ's finding that the claimant reestablished a causal connection between the industrial injury and his subsequent wage loss.
It is undisputed that the claimant was medically restricted from performing his regular job duties at the time of the termination. Further, there is substantial evidence that modified employment as a pipe fitter was not available to the claimant after the employment termination. Accordingly, the evidence supports the ALJ's finding that to some degree the industrial disability precluded the claimant from securing employment after November 7, 1996.
Contrary to the respondents' contention, evidence that the respondent-employer would have continued to provide modified employment had the claimant not been discharged for drinking on the job site does not compel a contrary result. The second part of the PDM test presumes that the claimant is responsible for the initial loss of the post-injury modified employment. Nevertheless, the claimant is not required to prove that the industrial disability is the "sole" cause of his wage loss, and may show that the injury impaired his ability to find substitute employment. See Horton v. Industrial Claim Appeals Office, 942 P.2d 1209 (Colo.App. 1996). The claimant is only precluded from receiving temporary disability benefits if the industrial injury "plays no part" in the wage loss. Horton v. Industrial Claim Appeals Office, supra. Therefore, the availability of continued employment with the respondent-employer does not preclude the claimant from receiving temporary disability benefits where the claimant establishes that the industrial disability impaired his ability to secure other employment within his restrictions.
IT IS THEREFORE ORDERED that the ALJ's order dated May 6, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL ____________________________________ David Cain ____________________________________ Kathy E. DeanNOTICE
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. 1997.
Copies of this decision were mailed February 26, 1998 to the following parties:
Steve Kirkeby, 6976 Monaco, Commerce City, CO 80022
Dick Brandsma, Murphy Company, 3790 Wheeling St., Denver, CO 80205
Steve Alvarez, Liberty Mutual Ins. Co., 13111 E. Briarwood Ave., #100, Englewood, CO 80112
Jonathan Wilderman, Esq., 4155 E. Jewell Ave., #500, Denver, CO 80222 (For the Claimant)
John M. Connell, Esq. and Dawn M. Yager, Esq., 1675 Larimer St., Ste. 710, Denver, CO 80202 (For the Respondents)
BY: ________________________________