Opinion
W.C. No. 4-745-387.
July 17, 2009.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Jones (ALJ) dated February 10, 2009, that granted the respondents petition to terminate temporary disability benefits. We affirm.
The claimant suffered an admitted work injury on November 23, 2007. The claimant was released to return to modified employment and worked for the employer in a light duty assignment. The claimant was incarcerated beginning March 1, 2008. On March 10, 2008, the employer terminated the claimant's employment. The ALJ determined that the respondents had sustained its burden of proof of establishing that the claimant engaged in a volitional act, which caused the termination of his employment. Therefore, the ALJ denied the claim for temporary total disability benefits.
On appeal, the claimant argues the evidence showed that he was involuntarily incarcerated, his employer had actual knowledge of his incarceration and probable absence from work for at least 4 days, and that he was unable to call the employer while incarcerated. The claimant contends that the ALJ erred in finding that the claimant was responsible for his termination for violation of the employers three day "no call/no show policy." We disagree.
Sections 8-42-105(4), C.R.S. 2008, and 8-42-103(1)(g), C.R.S. 2008 (referred to as the termination statutes), contain identical language stating that in cases "where it is determined that 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 that the term "responsible" reintroduced into the Workers' Compensation Act the concept of "fault" applicable prior to the decision in PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995). Hence the concept of "fault" as it is used in the unemployment insurance context is instructive for purposes of the termination statutes. In that context "fault" requires that the claimant must have performed some volitional act or exercised a degree of control over the circumstances resulting in the termination. Padilla v. Digital Equipment Corp., 902 P.2d 414 (Colo.App. 1995) 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 his discharge is on the respondents. Colorado Compensation Insurance Authority v. Industrial Claim Appeals Office, 18 P.3d 790 (Colo.App. 2000).
The question whether the claimant acted volitionally or exercised a degree of control over the circumstances of the termination is ordinarily one of fact for the ALJ. Knepfler v. Kenton Manor, W.C. No. 4-557-781 (March 17, 2004). Accordingly, we must uphold the ALJ's findings if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2008; 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 she drew from the evidence. Industrial Commission v. Royal Indemnity Co., 124 Colo. 210, 236 P.2d 293 (1951); Metro Moving Storage Co. v. Gussert, supra. 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. Under this standard of review it is also the ALJ's sole prerogative to evaluate the credibility of the witnesses and the probative value of the evidence. We may not substitute our judgment for that of the ALJ regarding credibility matters unless there is such hard, certain evidence contradicting the ALJ's determination that it would be error as a matter of law. See Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986).
The claimant cites his own testimony as evidence that he was taken to jail on a charge that was later dismissed and that he was not able to make a phone call from jail to the employer. Tr. at 29-30 32. The claimant argues that his brother called the employer to inform them that the claimant would be out of work for at least four days. Tr. at 14.
However, the ALJ with record support made the following findings of fact. The claimant testified that when he was released from jail on March 4, 2008 he went to the employer's on March 5, 2008 and spoke to the assistant manger but was not referred to the store manager. Tr. at 30-32. In contrast the assistant store manager to whom the claimant claimed to have spoken testified that he could not recall speaking to the claimant on March 5, 2008, and that if he had spoken to the claimant he would have referred the claimant to the store manager. Tr. at 54-56. See also Tr. at 15 (testimony of co-manager). On March 5, 2008 the claimant had not been terminated from employment and it was the employer's policy that if an employee is incarcerated, when that employee returns to work he is employed as long as he proves that he was found not guilty of the charges that caused his incarceration. Tr. at 25. The store manager testified that the first day of the claimant's incarceration was not counted as a "no call not show" against the claimant. Tr. at 13. However, subsequent days between March 2, 2008 and March 10, 2008, when the claimant did not contact the employer were counted against the claimant as a "no call no show" and resulted in the claimant's termination on March 10, 2008. Tr. at 16 21 25-26. The claimant sought unemployment compensation following his termination. Tr. at 49. However, despite records from the unemployment compensation proceeding in which it was found that the claimant reported he quit his job, the claimant testified that he never stated that he quit his job. Tr. at 49-51 Exhibit J at 101. The claimant testified that he was unfamiliar with the employer's attendance policy. Tr. at 40-41. However, the claimant's initials and signature appear on an attendance record reflecting his participation in a new employee orientation program where he was advised that three instances of "no call no show" would result in the termination of his employment. Tr. at 41 Exhibit J at 115.
The ALJ concluded that the claimant was not a credible witness. The ALJ found that the claimant's denial of knowledge of the attendance policy, his representations concerning his testimony at the unemployment compensation hearing, and his contention that he appeared at the employer's immediately upon his release where he spoke to the assistant manager were not credible.
In our view, there is substantial evidence supporting the ALJ's conclusion that the claimant's actions in failing to contact the employer during the time he was released from jail and when he was terminated constituted volitional acts that caused his termination. The claimant's argument that he could not comply with the employer's "no call no show" policy ignores the evidence that after his release from jail on March 4, 2008 he failed to contact the employer before his termination on March 10, 2008. Therefore, we perceive no error in the ALJ's determination to deny the claimant's claim for temporary total disability benefits.
IT IS THEREFORE ORDERED that the ALJ's order dated February 10, 2009 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Curt Kriksciun
______________________________ Thomas Schrant ANTHONY BOYD, AURORA, CO, (Claimant), WAL-MART SUPERCENTER STORE #3566, Attn: TERESA COLE, DENVER, CO, (Employer), CLAIMS MANAGEMENT, INC., Attn: SERENA LOUDERMILK, BENTONVILLE, AR, (Insurer), FRANKLIN D AZAR ASSOCIATES, Attn: JOHN M. CONNELL, ESQ., AURORA, CO, (For Claimant).
CLIFTON, MUELLER BOVARNICK, PC, Attn: M. FRANCES MCCRACKEN, ESQ., DENVER, CO, (For Respondents).