Opinion
W.C. No. 4-740-802.
August 12, 2009.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Broniak (ALJ) dated January 20, 2009, that determined the claimant was not responsible for his termination and awarded temporary total disability (TTD) benefits. We affirm.
The claimant worked as a biomedical technician for the employer and suffered an admitted injury to his left bicep tendon on October 11, 2007. The claimant returned to modified work in December 2007. Prior to his injury the employer placed the claimant on corrective action plans regarding his job performance. The employer eventually discharged the claimant. The ALJ found that the claimant was not responsible for the termination of his employment and therefore was not barred from receiving TTD. On appeal, the respondents argue that the ALJ's finding that claimant did not commit a volitional act that led to his termination and did not exercise a significant degree of control over the circumstances of his termination are not supported by the credible and persuasive evidence.
Here, the ALJ determined that the respondents did not establish by a preponderance of the evidence that the claimant was responsible for his termination from employment within the meaning of the termination statutes in the Workers' Compensation Act, §§ 8-42-103(1)(g) and-105(4), C.R.S. 2008. These 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." 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 termination statutes generally bar a claimant from receiving TTD benefits where he is at fault for the termination of his employment. 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). An individual acts volitionally if he is able to exercise some degree of control in the circumstances which caused the separation. Gonzales v. Industrial Commission, 740 P.2d 999 (Colo. 1987); Velo v. Employment Solutions Personnel, 988 P.2d 1139 (Colo. App. 1998). That determination must be based upon an examination of the totality of circumstances. Id.
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 he 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. Metro Moving Storage Co. v. Gussert, supra. 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).
I.
The respondents refer to evidence in the record supporting their contention that the claimant's separation from this employment resulted from his volitional conduct. However, the fact that the record contains some evidence which, if credited, might support a contrary result is immaterial on review. F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo. App. 1985). Moreover, the ALJ's findings are supported by the record.
The ALJ acknowledged that the claimant had work performance issues largely dealing with timeliness, which issues were due, in part, to his work-related injury. The claimant had multiple medical appointments each week resulting in frequent absences from work. Tr. (7/15/2008) at 51. In addition, he was required to manage work performed by a third party, over which he exercised no control. Tr. (10/27/2008) at 30-33 42-44. The laboratory business manager for the employer (Hampton) admitted that the length of the claimant's appointments and his time away from work spent at medical appointments factored in her decision to terminate the claimant's employment. Tr.(7/15/2008) at 138. Based upon the totality of the circumstances, the ALJ concluded that the claimant did not commit a volitional act that led to his termination and did not exercise a sufficient degree of control over the circumstances of his termination. Therefore, the ALJ determined that the claimant was not responsible for the termination of his employment and the termination statutes did not bar the claimant from receiving temporary disability benefits. In our view, the record contains substantial evidence to support the ALJ's determination.
II.
The respondents further assert that the hearing officer failed to put the claimant to his burden of effectively rebutting the employer's showing that it fired the claimant for cause by presenting "evidence `to justify the acts which led to the discharge.'" See City and County of Denver v. Industrial Comm'n, 756 P.2d 373,379-80 (Colo. 1988) (quoting Arvada v. Industrial Comm'n, 701 P.2d 623, 624-25 (Colo. App. 1985). Contrary to the respondents' assertions, we conclude that the ALJ properly considered whether, based upon the totality of the circumstances, the claimant was at fault for his separation from this employment. Both the ALJ's summary order and her specific findings of fact and conclusions of law reflect the ALJ's determination that, considering the relevant circumstances, the claimant did not engage in volitional conduct resulting in his termination. See CAN-USA Constr., Inc. v. Gerber, 767 P.2d 765 (Colo. App. 1988), rev'd on other grounds, 789 P.2d 269 (Colo. 1989) (it is proper to refer to contents of summary order when interpreting findings contained in final order). The ALJ summarized her findings as follows:
Based on the foregoing, Respondents have not established by a preponderance of the evidence that Claimant was responsible for his termination from employment within the meaning of the termination statues in the Workers' Compensation Act. While it is true that Claimant had some work performance issues largely dealing with timeliness, it was due, in part, to his work-related injury. Claimant had multiple medical appointments each week resulting in frequent absences from work. In addition, he was required to manage work performed by a third-party, over which he exercised no control. Finally, Ms. Hampton admitted that the length of Claimant's appointments and his time away from work spent at medical appointments factored in her decision to terminate Claimant's employment. It is apparent from the evidence and Ms. Hampton admitted that she was "gathering more data" to support a termination. Ms. Hampton began the termination process within five days of becoming Claimant's supervisor. Based upon the totality of the circumstances, Claimant did not commit a volitional act that led to the termination and did not exercise a sufficient degree of control over the circumstances of his termination. Claimant is not barred from receiving TTD.
Findings of Fact, ¶ 28. It appears from the ALJ's full order that, when based upon the totality of the circumstances, she found that the claimant did not perform a volitional act or otherwise exercise a degree of control over the circumstances resulting in his termination. See Padilla v. Digital Equipment Corp., supra.
We note that interspersed in the ALJ's recitation of applicable case law are outdated notions related to a claimant's entitlement to TTD benefits based on any contribution to wage loss by the industrial injury. As noted above, in the event an injured worker is terminated the General Assembly emphasized through legislation a fault-based analysis, rather than whether the injury contributed to some degree to the subsequent wage loss pursuant to the holding in PDM Molding, Inc. v. Stanberg, supra. The ALJ included in her findings a determination that the claimant was terminated due, in part, to his work-related injury. When read in conjunction with the ALJ's other dispositive findings, it appears that the ALJ was satisfied that the respondents discharged the claimant due to circumstances beyond his control, including the need to be absent from work due to medical appointments. IT IS THEREFORE ORDERED that the ALJ's order dated January 20, 2009 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ John D. Baird
______________________________ Thomas Schrant
JOHN CARPENTER, BRIGHTON, CO, (Claimant).
KAISER PERMANENTE, Attn: ARNE HARAM, MS, DENVER, CO, (Employer).
SEDGWICK CMS — DENVER, Attn: LANDON G. WALLIS, LEXINGTON, KY, (Insurer).
ELEY GALLOWAY TRIGG, LLP, Attn: DANIEL B. GALLOWAY, ESQ., DENVER, CO, (For Claimant).
SENTER GOLDFARB RICE, LLC, Attn: WILLIAM M STERCK, ESQ., DENVER, CO, (For Respondents).