Opinion
W.C. No. 4-842-470.
November 9, 2011.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Martin D. Stuber (ALJ) dated June 20, 2011, that denied the claimant's request for temporary total disability benefits. We affirm the ALJ's order.
A hearing was held on the issue of temporary disability benefits. After hearing the ALJ entered findings of fact which for purposes of review can be summarized as follows. The claimant worked as an assistant manager for the employer when she sustained an admitted injury to her neck on August 5, 2010. The claimant received medical treatment and was given restrictions against lifting, pushing, pulling or carrying over 10 pounds. The claimant returned to her job as assistant manager after the injury.
On September 10, 2010, in response to a low score on a loss prevention audit, the employer issued a written warning to the claimant concerning her job performance. The claimant was warned that she was not coaching and developing her direct reports, she was not correctly processing damaged products, not completing end caps and leaving research on cycle counts to other managers. The claimant was also given a loss prevention action plan.
The store failed a second loss prevention audit and on October 4, 2010, the claimant's supervisor issued a second warning to the claimant concerning her job performance. The claimant admitted that she had not completed the loss prevention action plan. The claimant was also warned about her dealings with associates. This second warning caused the claimant to feel "devastated" and to become a "nervous wreck" and she requested the rest of her shift off. On October 5, 2010, the claimant submitted her resignation to the employer. The claimant admitted at hearing that the resignation was "voluntary," but she also said that she felt "forced out."
The ALJ found that the claimant was responsible for her termination of employment on October 5, 2010. The ALJ determined that the claimant voluntarily resigned her position and was not terminated by the employer. The ALJ further determined that the claimant failed to show that she was constructively discharged in that the working conditions were not so difficult that a reasonable person in the claimant's position would feel compelled to resign. The ALJ further found that the claimant failed to prove that she suffered a worsening of condition and increased disability after the termination, sufficient to reestablish the temporary disability benefits. Therefore, the ALJ denied the claim for temporary disability benefits. The claimant now appeals the ALJ's order.
I.
The ALJ relied on § 8-42-103(1)(g), C.R.S. and 8-42-105(4), C.R.S. (termination statutes) to deny the claimant's request for temporary disability benefits. Under the termination statutes a claimant who is responsible for the termination of employment is not entitled to temporary disability benefits absent a worsening of condition which reestablishes the causal connection between the injury and the wage loss. Anderson v. Longmont Toyota, 102 P.3d 323 (Colo. 2004). The concept of "responsibility" reintroduced the limited concept of "fault" into the Workers' Compensation Act. Colorado Springs Disposal v. Industrial Claim Appeals Office, 58 P.3d 1061 (Colo. App. 2002). 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. 1985). That determination must be based upon an examination of the totality of circumstances. Id. As the ALJ correctly recognized, the burden to show that the claimant was responsible for her discharge is on the respondents. See Colorado Compensation Insurance Authority v. Industrial Claim Appeals Office, 18 P.3d 790 (Colo. App. 2000).
Whether an employee is at fault for causing a separation of employment is a factual issue for determination by the ALJ. Gilmore v. Industrial Claim Appeals Office, 187 P.3d 1129 (Colo. App. 2008). Accordingly, we must uphold the ALJ's findings if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S.; Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo. App. 1995). This standard of review requires us to view the evidence in the light most favorable to the prevailing party, and to accept the ALJ's resolution of conflicts in the evidence as well as plausible inferences which he drew from the evidence. Id. Resolving conflicting inferences which could be drawn from the competing testimony is solely in the ALJ's discretion. Id. This standard of review is deferential and the scope of our review in this regard is "exceedingly narrow." Id.
Here, the record supports the ALJ's determination that the claimant was responsible for the termination of employment. The claimant testified at hearing that she voluntarily resigned. Tr. at 48. Similarly, the employer's general manager, Ms. Culbertson, testified that the claimant was not fired but that she submitted her resignation. Tr. at 62. The testimony of Culbertson and the claimant provide substantial evidence and valid support for the ALJ's conclusion that the claimant's decision to resign was within her control.
The claimant argues that the termination statutes do not apply to this case because she alleges that the employer created a hostile work environment in retaliation for the claimant filing a workers' compensation claim and that she was constructively discharged. We disagree with the claimant's argument and conclude that the ALJ correctly applied the relevant legal standards.
A constructive discharge occurs when an employer allows an employee's working conditions to become so difficult that a reasonable person in the employee's position would feel compelled to resign because of those conditions. See Wilson v. Board of County Commissioners, 703 P.2d 1257 (Colo. 1985). However, a constructive discharge does not occur unless a reasonable person would consider those working conditions to be intolerable. Id.
The claimant's argument that the creation of a "hostile work environment" precludes the application of the termination statutes is without merit. Instead, the claimant's contention that under the circumstances created by the employer she had no choice but to resign goes to the issue of fault and whether the claimant exercised a degree of control over the circumstances of her resignation. If the working conditions had been so objectively unsatisfactory that a reasonable person would resign, then the ALJ could have determined that the claimant was not at fault for the job separation. See Section 8-73-108(4)(c), C.R.S; Rodco Systems, Inc. v. Industrial Claim Appeals Office, 981 P.2d 699 (Colo. App. 1999).
However, it is apparent from the ALJ's order that he considered and rejected the claimant's argument in this regard. The ALJ found, with record support, that the working conditions had not become so difficult that a reasonable person in the claimant's position would feel compelled to resign because of those conditions. ALJ Order at 5 ¶ 3. In determining whether the resignation was volitional, an ALJ may be required to evaluate competing factual theories concerning the actual reason or reasons for the resignation. See Eckart v. Industrial Claim Appeals Office, 775 P.2d 97 (Colo. App. 1989). Here, the ALJ's determination is supported by Culbertson's testimony concerning the circumstances surrounding the two write-ups.
Culbertson testified that the first write up concerned associate relation issues, job duties that weren't being fulfilled or completed and low scores on loss prevention audits. Tr. at 63. Specifically, Culbertson testified that there were associates who didn't like the way they were being talked to by the claimant, filing issues, presentation issues, the end caps and the pallet divisions were not being done. Tr. at 63-64. Culbertson also testified that if the claimant wasn't able to actually do the physical work, her position allowed her to delegate the work to other associates. Tr. at 64. On the issue of the loss prevention audits, Culbertson stated that there were files missing, unsigned documents, alarms not done throughout the store and safety meetings not being held and the claimant was supposed to make sure these things were being done. Tr. at 66. Culbertson also detailed the facts surrounding the second write-up. Culbertson asked the claimant to develop an action plan for the loss prevention audit, which the claimant did not do and there were additional associate issues. Tr. at 66-67.
The ALJ made the reasonable inference from Culbertson's testimony that the claimant was not being harassed as there were legitimate performance issues and that the claimant's resignation did not have to do with the work-related injury. The ALJ was not persuaded that the working conditions were objectively unreasonable because of the claimant's perception that she was being harassed. Consequently, the claimant's act of submitting her resignation was within her control rather than the result of a constructive discharge. Because the ALJ's findings and plausible inferences drawn from the record are supported by substantial evidence, we are precluded from altering those findings on review. Section 8-43-301(8), C.R.S.; Wal-Mart Stores, Inc. v. Industrial Claim Appeals Office, 989 P.2d 251 (Colo. App. 1999).
The claimant further argues that if the termination statutes do apply, the ALJ's findings are not supported by substantial evidence because the only evidence submitted by the respondents concerning the claimant's alleged threatening statements to the employees she supervised, was hearsay evidence. We are not persuaded.
The claimant did not object to the employer's testimony as hearsay at hearing and she may not do so now on appeal. Section 8-43-210, C.R.S.; CRE 103(a)(1), (contemporaneous objection required before error may be predicated on allegedly erroneous admission of evidence). In any event, even if the claimant had timely objected to the evidence as hearsay, the record does not compel contrary result. Although the ALJ's order mentions the fact that the claimant was warned about her "dealings with associates," this finding was not significant to the ALJ's conclusion. As we read the ALJ's order, he found with record support, that the claimant was largely written up for her performance issues and the issues surrounding the loss prevention audit. ALJ Order at 2 ¶ 8 and at 3 ¶ 11. Section 8-43-301, C.R.S. (an error which is not prejudicial will be disregarded).
II.
The claimant also argues that the ALJ erred in concluding that the claimant failed to prove a worsening of condition and increased disability after the termination of her employment. The claimant contends that the ALJ erroneously relied on the sole fact that the claimant did not have increased work restrictions to reach his conclusion. We are not persuaded that the ALJ committed reversible error.
Relying on Anderson v. Longmont Toyota, supra, the ALJ correctly acknowledges that the termination statutes are not a permanent bar to the receipt of temporary benefits and that the right to temporary disability benefits may again be established if the claimant shows a worsened condition which causes a subsequent wage loss. A wage loss is "caused by a worsened condition" if the worsening results in physical limitations or restrictions which did not exist at the time of the termination, and these limitations or restrictions cause a limitation on the claimant's temporary earning capacity which did not exist when the claimant caused the termination. Martinez v. Denver Health, W.C. No. 4-527-415 (August 8, 2005). The question of whether such a worsening caused the claimant's wage loss remains one of fact for determination by the ALJ. Fantin v. King Soopers, W.C. No. 4-465-221 (February 15, 2007). Because the issue is factual in nature, we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S.
Here, the ALJ found with record support that the claimant failed to prove by a preponderance of the evidence that she suffered a worsening of condition and increased disability after the termination of her employment. ALJ Order at 5 ¶ 4. As the ALJ noted, the claimant's radicular symptoms actually improved after her series of epidural steroid injections and the claimant was left with myofacial pain complaints in her neck for which she was receiving continued treatment. Claimant's Exhibits at 11. The ALJ did not, as the claimant contends, rely solely on the fact that the claimant's restrictions did not increase. Therefore, we are not persuaded to interfere with the ALJ's determination that the claimant failed to show that her condition worsened. IT IS THEREFORE ORDERED that the ALJ's order dated June 20, 2011, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________ John D. Baird
_________________________ Brandee DeFalco-Galvin
JANIE E. NOBLE, FT. CARSON, CO, (Claimant).
STAPLES, INC., Attn: JENNIFER CULBERTS, COLORADO SPRINGS, CO, (Employer).
ESIS, Attn: EVY RADMACHER, TAMPA, FL, (Insurer).
SHAKESHAFT LAW FIRM, Attn: KENNETH J. SHAKESHAFT, ESQ., COLORADO SPRINGS, CO, (For Claimant).
TREECE, ALFEY, MUSAT BOSWORTH, P.C., Attn: KATHLEEN M. FAIRBANKS, ESQ., DENVER, CO, (For Respondents).