Opinion
W.C. No. 4-551-844
July 18, 2003
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Felter (ALJ) which awarded temporary total disability benefits. The respondents contend the ALJ erred as a matter of law in finding the respondents failed to prove the claimant was responsible for a termination of employment under § 8-42-103(1)(g), C.R.S. 2002, and § 8-42-105(4), C.R.S. 2002 (collectively the termination statutes). We affirm.
On August 19, 2002, the claimant, a probationary employee, sustained a compensable injury to his right hand and ring finger while operating a saw. The claimant was placed on light duty restrictions which prohibited use of the right hand and forbade the claimant from working around moving machinery.
In an effort to accommodate the claimant's restrictions the claimant was placed in a job which required him to move boxes from one conveyor belt to another. The claimant's supervisor admitted the conveyor belts were moving machinery. (Tr. p. 23).
On September 19, 2002, the employer terminated the claimant. A "Personnel Action Record" dated September 19 states the claimant was "terminated for unsatisfactory probation period." A "Turnover Investigation" report dated September 20, 2002, signed by the claimant's supervisor, states the claimant was terminated because he "was never at his work station" and "always walking off the job." The investigation report also states the supervisor spoke to the claimant about "showing respect" to supervisors and "walking off his job and not letting anyone know."
At the hearing the supervisor testified the claimant was terminated because he used foul language to a lead person and because he was absent from his work station. The supervisor stated that on two occasions the claimant reported he was in the restroom for "about half an hour," and on another occasion he said he was on the way to the restroom despite being seen in the cafeteria. (Tr. Pp. 14-16).
The ALJ concluded the respondents failed to prove the claimant was responsible for the termination within the meaning of the termination statutes. Specifically, the ALJ found that "at best the evidence establishes the Claimant did not successfully complete the probationary period because he did not measure up to the employer's expectations." (Finding of Fact 15; Conclusion of Law f). The ALJ further found that when the supervisor questioned the claimant concerning the two absences from the work station, he reported he was in the restroom. The ALJ concluded that "heeding the call of nature cannot be considered a volitional act" demonstrating that the claimant exercised dome control over the circumstances leading to the termination. (Conclusion of Law e).
On review, the respondents contend the undisputed evidence demonstrates the claimant was terminated not because he failed to meet the employer's expectations, but because he used foul language to the lead person and violated the employer's rules by abandoning the work station without notifying the supervisor. The respondents assert the claimant's conduct evidences volitional conduct showing he was responsible for the termination within the meaning of the termination statutes. As a corollary to this argument the respondents contend the ALJ erroneously required the respondents to prove the claimant used foul language to the supervisor rather than the lead person, and that the ALJ speculated the claimant may have had gastrointestinal problems . We are not persuaded.
The claimant correctly argues that the termination statutes constitute an affirmative defense to an otherwise valid claim for temporary disability benefits. Thus, the burden of proof is on the respondents to establish the claimant was "responsible" for the termination from employment. White-Skunk v. QK, Inc., W.C. No. 4-500-149 (October 3, 2002).
In Colorado Springs Disposal v. Industrial Claim Appeals Office, 58 P.3d 1061 (Colo.App. 2002), the court held the term "responsible," as used in the termination statutes, introduces into the Act the concept of "fault" which, at a minimum, requires a volitional act by the claimant. Thus, a claimant is "responsible" for a termination of employment if the claimant performs a volitional act or exercises some degree of control over the circumstances leading to the termination. See Gonzales v. Industrial Commission, 740 P.2d 999 (Colo. 1987); Jeppsen v. Huerfano Medical Center, W.C. No. 4-440-444 (January 27, 2003). Further, the mere violation of an employer policy does not automatically establish the claimant was at fault for a termination. Gonzales v. Industrial Commission, supra.
Generally, the question of whether the claimant acted volitionally, and therefore is "responsible" for a termination from employment, is a question of fact to be decided by the ALJ based on consideration of the totality of the circumstances. Gonzales v. Industrial Commission, supra; Jeppsen v. Huerfano Medical Center, supra. Thus, we must uphold the ALJ's pertinent findings if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2002. This is a narrow standard of review which requires us to view the evidence in a light most favorable to the prevailing party, and defer to the ALJ's credibility determinations, resolution of conflicts in the evidence, and plausible inferences drawn from the record. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). The ALJ is not required to credit the testimony of a witness, even if it is uncontradicted and unrebutted. Levy v. Everson Plumbing, Co., Inc., 171 Colo. 468, 468 P.2d 24 (1970); Cary v. Chevron U.S.A., Inc., 867 P.2d 117 (Colo.App. 1993). Further, evidence not specifically credited by the ALJ is presumed to have been rejected. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000).
The respondents argue the ALJ "failed to understand" that the "underlying basis" for the claimant's termination for "unsatisfactory probation" was that the claimant used foul language with the team leader and "walking off the job." The respondents assert these "underlying reasons" were established by both the written documentation and the uncontradicted testimony of the claimant's supervisor. Further, the respondents argue this evidence, viewed in its proper light, demonstrates as a matter of law that the claimant engaged in volitional conduct establishing his responsibility for the termination. We are not persuaded.
The respondents arguments notwithstanding, the ALJ was not compelled to conclude the claimant was discharged based on the "underlying reasons" described by the claimant's supervisor. The first document generated by the employer, the Personnel Action Record dated September 19, describes the reason for termination as "unsatisfactory probation period" and makes no mention of the claimant's alleged use of foul language or "walking off the job." The Turnover Investigation report, generated the next day, states the claimant was "always walking off the job" without telling anyone and was disrespectful to "lead persons," but makes no mention of foul language.
Thus, the asserted reason or reasons for the discharge varies between the documents and the testimony of the supervisor. It is possible, as the respondents argue, that the ALJ could have interpreted the documents and testimony to be consistent, but that is not the only plausible interpretation. It is also possible to interpret the record as establishing that employer was simply not satisfied with the claimant's overall performance during the probationary period and decided to discharge him for its own convenience. It was only after the discharge for "unsatisfactory probation period" occurred that the employer, and specifically the supervisor, began to recall and document incidents which, viewed in isolation, might persuade an ALJ that the claimant was responsible for the termination. The ALJ was persuaded by this later interpretation and concluded the respondents failed to carry the burden of proof to establish a volitional act by the claimant which was the cause of the termination. (Finding of Fact 15; Conclusion of Law f). We may not interfere with the plausible inference which the ALJ drew from this record merely because other inferences were possible. May D F v. Industrial Claim Appeals Office, 752 P.2d 589 (Colo.App. 1988).
For the same reasons we reject the assertion that it was "totally erroneous" for the ALJ to infer that the employer discharged the claimant because of dissatisfaction with his performance. As noted, this is a plausible inference from the Personnel Action Record. Further, as the ALJ found, the injury itself precluded the claimant from performing his regular job, and the modified employment was outside the claimant's restrictions because it required the claimant to work in proximity to moving machinery.
We also disagree with the respondents' assertion that the testimony of the supervisor must be viewed as "uncontradicted." As noted, the issue of whether the supervisor's testimony is viewed as "uncontradicted" depends on interpretation of the documents. In any event, it is implicit in the ALJ's order that he did not credit the supervisor's testimony as establishing the reasons for the termination, and he was not required to do so. Instead, this testimony was implicitly rejected.
The respondents assert that the ALJ's statement, at the conclusion of the hearing, that the claimant may have stayed in the restroom because of "gastrointestinal problems" was "speculation." However, in our view, this remark was merely an indication that the ALJ was unpersuaded that the respondents' evidence was sufficient to meet the burden of proof to establish that the claimant had acted volitionally. (Tr. P. 31).
In any event, the remark was nothing more than harmless error because the ALJ found, on substantial evidence, that the claimant's trips to the restroom were not the reason for the termination. Similarly, the ALJ's statements concerning use of foul language must be viewed as harmless error.
Finally, the respondents contend the ALJ's statements at the conclusion of the hearing demonstrate bias against the employer. Specifically, when discussing the use of "foul language," the ALJ stated he was "having a difficult time with this — the analogy between the Excel meat packing floor and the First Baptist Church." (Tr. P. 29).
First, the respondents did not object to this remark or request that the ALJ recuse himself after the remark was made. Thus, the argument that the ALJ was biased may not be raised for the first time on appeal. Kuziel v. Pet Fair, Inc., 948 P.2d 103 (Colo.App. 1997); Notz v. Notz Masonry, Inc., W.C. No. 4-158-043 (May 28, 1996) (holding issue of recusal waived where party did not request recusal prior to conclusion of the hearing).
In any event, an ALJ is presumed to be competent and unbiased until the contrary is shown. Wecker v. TBL Excavating, Inc., 908 P.2d 1186 (Colo.App. 1995). Bias sufficient to support removal of an ALJ requires a showing of a personal, financial, or official stake in the outcome of the hearing sufficient to establish a conflict of interest. Neoplan U.S.A. Corp. v. Industrial Claim Appeals Office, 778 P.2d 312 (Colo.App. 1989).
Here, the ALJ's remarks do not show a personal, financial, or official stake in the outcome of the case. Rather, read in context, the ALJ was commenting on the credibility of the respondents' evidence. In fact the ALJ stated that he lacked "solid evidence" concerning enforcement of the employer's alleged policy against the use of foul language.
Insofar as the respondents raise other arguments, we find them to be without merit.
IT IS THEREFORE ORDERED that the ALJ's order dated February 20, 2003, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Kathy E. Dean
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, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2002. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe Street, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed July 18, 2003 to the following parties:
Henry Ray Brinsfield, 507 Dahlia St., Ft. Morgan, CO 80701
Deb Carlock, Workers' Compensation Coordinator, Excel Corporation, C. S. 4100, Ft. Morgan, CO 80701
Cargill, Inc., c/o Margaret Johnson, Crawford Company, 2850 McClelland Dr., #1600, Ft. Collins, CO 80525
Elsa Martinez Tenreiro, Esq., 700 Broadway, #1101, Denver, CO 80203 (For Claimant)
Tama L. Levine, Esq., 999 18th St., #1755, Denver, CO 80202 (For Respondents)
By: A. Hurtado