Opinion
W.C. No. 4-757-911.
August 12, 2009.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Felter (ALJ) dated April 14, 2009 that denied temporary disability benefits. We affirm.
The claimant suffered an industrial cervical injury on April 24, 2008. The claimant was provided with modified work within his medical restrictions. A dispute arose between the claimant and the branch manger of the employer regarding the claimant's ability to work outside. The claimant maintained that as a result of his injury he could not work in sunshine. The branch manager testified that at the time of termination there were no documented restrictions regarding outdoor work that had been provided to the employer. The claimant left the worksite to obtain written work restrictions addressing outdoor work. The branch manager testified that when the claimant was leaving the worksite he got into the manager's face and used an obscene expression. The ALJ found that the language used by the claimant was a volitional act of insubordination. The ALJ found that the claimant was terminated for violation of company policy and insubordinate behavior that occurred during this confrontation. The ALJ concluded that the respondents had proven by preponderant evidence that the claimant was responsible for his termination from employment. The claimant brings this appeal contending that the ALJ's determination is not supported by the evidence.
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 claimant, noting the respondents had the burden of proof regarding termination, argues that because there was conflicting testimony from two witnesses on the issue of insubordination it was impossible to tell the truth regarding the events surrounding the claimant's termination. Therefore, the claimant contends that without collaborating evidence there was no reasonable way for the ALJ to have concluded that the respondents met their burden of proof. We disagree.
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. Id. This standard of review is deferential and the scope of our review in this regard is "exceedingly narrow." Id.
We agree that in large part the case was determined based on the ALJ's resolution of conflicting testimony between the claimant and the branch manager. However, the fact that there were two conflicting witnesses does not persuade us that the ALJ could not resolve the competing testimony. Jachetta v. Milano, 147 Colo. 100, 362 P.2d 1065 (1961) (substantial evidence not determined by the number of witnesses presented by each party).
Here, the ALJ determined that the testimony by the branch manager concerning the confrontation with the claimant was more credible. The ALJ was not required to articulate the basis for his resolution of conflicts in the evidence regarding credibility. See Wells v. Del Norte School District C-7, 753 P.2d 770 (Colo. App. 1987). Nevertheless, among other things the ALJ made the following findings of fact with record support regarding credibility of the witnesses. The branch manager contemporaneously documented the incident with a memo. Exhibit C. The ALJ found that the claimant was terminated at approximately 10:00 a.m. on June 24, 2008 and the branch manager received an addendum restriction dated June 24, 2008 of no working out in the direct sun. Tr. at 30-31, 34-35; Exhibit E. This addendum was received on or about 1:19 p.m. on June 24, 2008. Tr. at 31-32; Exhibit E. This supports the testimony of the branch manager that at the time of the confrontation there were no documented restrictions regarding outdoor work that had been provided to the employer. The ALJ found that the branch manager at the time he testified was no longer employed by the respondent employer. Tr. at 27. The ALJ found that the claimant had an interest in obtaining benefits, and while the branch manger might have an interest in containing workers' compensation premiums for his former employer, such interest was remote. In our view, the ALJ made plausible inferences drawn from the record.
It is 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 unless the testimony the ALJ found persuasive is rebutted by such hard, certain evidence that it would be error as a matter of law to credit the testimony. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986). In our view, there was ample support in the record for the ALJ's determination. Therefore, we are not persuaded to interfere with the ALJ's order.
IT IS THEREFORE ORDERED that the ALJ's order dated April 14, 2009 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Thomas Schrant
CRAIG S LIGGINS, AURORA, CO, (Claimant).
HARSCO CORPORATION, Attn: MARK MEDINA, C/O: PATENT CONSTRUCTION SYSTEM, COMMERCE CITY, CO, (Employer).
LAW OFFICES OF DARRELL S ELLIOTT, Attn: ROBERT F JAMES, ESQ., DENVER, CO, (For Claimant).
CLIFTON, MUELLER BOVARNICK, PC, Attn: ERICA A WEBER, ESQ., DENVER, CO, (For Respondents).
ESIS PORTLAND, Attn: WES JOHNSON, TAMPA, FL, (Other Party).