In the Matter of Claim of Yale v. Engineered Plastic Designs, W.C. No. 4-643-303 (CO 4/3/2006), W.C. No. 4-643-303.

Decision Date03 April 2006
Docket NumberW.C. No. 4-643-303.
PartiesIN THE MATTER OF THE CLAIM OF CRAIG YALE, Claimant v. ENGINEERED PLASTIC DESIGNS, Employer and ACE AMERICAN INSURANCE CO., Insurer, Respondents.
CourtColorado Supreme Court
FINAL ORDER

The claimant seeks review of an order of Administrative Law Judge Coughlin (ALJ), which denied medical benefits for certain providers and also denied temporary disability benefits, finding that the claimant was responsible for his termination from employment. The ALJ also found that the claimant sustained compensable injuries to his back and left knee, but not to his abdomen or bladder. We affirm.

The employer hired the claimant as a welder. The claimant asserted he sustained an industrial accident and sought workers' compensation benefits. The ALJ determined the claimant sustained compensable injuries on February 23, 2005, in the nature of a back strain and a left knee strain. She ordered the respondents to pay for the medical services of several medical providers, but she determined that Drs. Sisson and Clemens were not authorized treating physicians and disallowed payment for their services. The ALJ also determined that temporary disability benefits were unavailable to the claimant because he was responsible for his termination of employment based on the results of a drug test showing the claimant tested positive for marijuana.

On appeal, the claimant asserts that the ALJ's various determinations are not supported by substantial evidence. Our review is limited and we may disturb the ALJ's order only if the findings of fact are insufficient to permit appellate review, the ALJ has not resolved conflicts in the evidence, the record does not support the ALJ's findings, the findings do not support the order, or the order is not supported by the applicable law. § 8-43-301(8), C.R.S. 2005.

The claimant firsts contends the ALJ erred in disallowing temporary total disability benefits. He argues that temporary disability benefits were not effectively terminated due to either an offer of modified employment or a valid determination that he was responsible for his separation from employment.

Temporary total disability benefits may cease in the event a claimant fails to begin modified employment after receiving a written offer. § 8-42-105(3)(d)(1), C.R.S. 2005. The claimant asserts that he was not placed on modified work status until March 18, 2006. However, the ALJ found that the employer provided the claimant with a written, light-duty job offer signed by Dr. Reents, who the ALJ found to be an authorized physician, on February 24, 2006. A witness for respondent testified that she delivered a copy of the offer to the claimant, albeit unsigned by the physician. Tr. at 117. Nonetheless, the record includes what appears to be the purported offer of modified employment approved by Dr. Reents. Exhibit E at 84. In addition, the claimant admitted to receiving from the employer an offer for a light-duty job, in writing, the day after his injury. Tr. at 79.

Whether an attending physician released a claimant to return to employment is a question of fact for the ALJ to determine. Popke v. Industrial Claim Appeals Office, 944 P.2d 677 (Colo. App. 1997). Moreover, the ALJ must resolve any corresponding conflicts in the record. Imperial Headware, Inc. V. Industrial Claim Appeals Office, 15 P.3d 295 (Colo. App. 2000). Here, the record supports the ALJ's finding that the claimant was provided with a written, light-duty job offer signed by an authorized physician and, therefore, we may not disturb her finding. Furthermore, the ALJ did not find that Dr. Reents rescinded his release to modified work. Cf. Selvage v. Terrace Gardens and American Home Assurance, W.C. No. 4-486-812 (Sept. 23, 2002). Instead, the ALJ expressly found that Dr. Reents "advised Claimant of the importance of returning to work." Findings of Fact, Conclusions of Law and Order at 4, ¶ 10.

Temporary total disability benefits may also end if the injured employee is responsible for his termination of employment and thereby causes the resulting wage loss. §§8-42-103(1)(g) and 8-42-105(4), C.R.S. 2005. The termination statutes provide that in cases where 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 the term "responsible" appears to introduce into the Act the limited concept of fault used in termination cases before the supreme court's decision in PDM Molding Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995). Under this standard, 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). Usually, the existence of "fault" is a question of fact for determination by the ALJ. Windom v. Lawrence Construction Co., W.C. No. 4-487-966 (November 1, 2002).

Because the issue of fault is factual, we must uphold the ALJ's determination if supported by substantial evidence in the record. § 8-43-301(8), C.R.S. 2005. This standard of review requires us to consider the evidence in a light most favorable to the prevailing party, and defer to the ALJ's resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo. App. 1995).

Here, the ALJ made several findings addressing the claimant's separation from employment. The claimant failed a drug test by testing positive for marijuana. A medical officer tried, but was unable, to contact the claimant about the test results. The employer advised the claimant of his test results and his corresponding discharge. The employer substantially followed its policies and procedures in terminating the claimant. Modified employment to accommodate his medical restrictions would have been available to the claimant had he not been discharged for his positive drug test. The ALJ also found the termination was unrelated to the claimant's work injury.

The ALJ's findings as to the claimant's responsibility for his separation from employment are supported by the record. A witness for the employer testified that the claimant was discharged for being under the influence of a controlled substance while at work and, also, that the termination was based on its assumption that the claimant was at work and under the influence of a controlled substance (marijuana), as indicated on the drug test administered the day after the claimant was at work. Tr. at 119, 121-22, 136. She also testified to attempts by a medical officer to contact the claimant about the test results, as well as the employer's procedures for such terminations. Tr. at 119, 120-27. There is also documentation to support the ALJ's findings as to the reason for the claimant's separation from employment. See Exhibit E.

The claimant also challenges the ALJ's determination that his compensable injury related only to his back and left knee, but did not concern abdominal pain or any bladder dysfunction.

The nature and severity of the claimant's industrial injury is a question of fact for resolution by the ALJ. Section 8-43-301(8), C.R.S. 2004;City of Durango v. Dunagan, 939 P.2d 496 (Colo. App. 1997). Consequently, we must uphold the ALJ's finding if supported by substantial evidence. Under this standard, we must view the evidence in the light most favorable to the prevailing party, and defer to the ALJ's credibility determinations unless they are rebutted by such hard, certain evidence as to be incredible as a matter of law. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986); Industrial Commission v. Royal Indemnity Co., 124 Colo. 210, 236 P.2d 293 (1951). However, inconsistencies, contradictory evidence, and incomplete testimony are not uncommon to the adversary process and it is the ALJ's sole prerogative to resolve such matters. West v. Aranda (Colo. App. No. 92CA1576, July 1, 1993) (not selected for publication); see...

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