W.C. No. 4-507-367.Industrial Claim Appeals Office.
June 24, 2003.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Klein (ALJ) which denied her request for temporary disability benefits following the termination of employment. We affirm.
The claimant was employed as a detention officer for the Sheriff’s Office. On June 22, 2001, the claimant suffered an admitted injury. The claimant returned to modified work for the employer. On June 28, 2001, the employer discharged the claimant. The claimant applied for temporary disability benefits commencing June 29, 2001.
The claimant had been the subject of an internal investigation in March 2001. During the investigation, the claimant failed two polygraph tests and gave inconsistent statements. Ultimately, the claimant was disciplined for violating the employer’s policy which prohibits employees from knowingly making false statements to a fellow employee during any internal affairs investigation. The claimant was also found to have violated the employer’s contraband policy. As a result of the violations, the claimant was placed on probation for six months and warned that any further violation could result in additional discipline including the termination of employment.
On June 8, 2001, the claimant was riding in her van with her boyfriend when they were stopped and cited by the Gilcrest Police Department for expired license plates and lack of proof of insurance. The Gilcrest officers subsequently complained to the employer about the claimant’s behavior during the stop. The claimant was questioned about the stop by Sergeant Esters (Esters) on June 11. Esters also asked the claimant whether the van had a current registration and proof of insurance. The ALJ found the claimant told Esters five to eight times that the license plates on the van were valid. However, Esters checked the van in the employer’s parking lot, where he observed that the plates expired in February 2001. The claimant updated the registration on June 12. However, the employer terminated the claimant’s employment effective June 28, 2001 for violating the employer’s truthfulness policy.
The claimant testified that she did not know the plates were expired at the time she spoke to Esters. However, the ALJ discredited the claimant’s testimony in view of the fact that the claimant was in the van on June 8, when her boyfriend was cited for expired plates. Further the ALJ determined the claimant fully understood the employer’s truthfulness policy at the time she lied to Esters. Under these circumstances, the ALJ determined the claimant knew or should have known that untruthfulness on her part during the probationary period would result in her termination. Therefore, the ALJ found the claimant was responsible for the termination of her employment, and is consequently barred by § 8-42-105(4), C.R.S. 2002, from receiving temporary disability benefits after June 28, 2001.
On review, the claimant contends the record fails to support the ALJ’s finding that the claimant knew the plates were expired because she knew her boyfriend had been cited for expired plates. (See Finding of Fact 10). In support, the claimant relies on testimony allegedly indicating that her boyfriend told her the plates were valid and the insurance was current. Further, she contends that when the employer directed her to update the licenses plates within 24 hours, she complied. Therefore, the claimant argues the record compels a finding that the termination was the result of an innocent mistake or error and the conclusion she was not responsible for the termination of her employment. We perceive no basis on which to disturb the ALJ’s order.
Initially, we note that the claimant’s Designation of Record includes the “complete Division of Workers’ Compensation file.” The record transmitted to us on appeal apparently does not include the complete Division of Workers’ Compensation file. However, our review is limited to the evidentiary record before the ALJ, and there is no evidence in the record which tends to suggest the claimant requested the ALJ to consider the entire Division of Workers’ Compensation file as part of the evidentiary record for the hearing. See City of Boulder v. Dinsmore, 902 P.2d 925 (Colo.App. 1995); Rules of Procedure, Part VIII(A)(6), 7 Code Colo. Reg. 1101-3 at 22. Consequently, we have not obtained or considered the Division of Workers’ Compensation file, but have restricted our review to the record made at the hearing.
To receive temporary disability benefits, a claimant must establish a causal connection between the industrial disability and the loss of wages. Section 8-42-105(4) provides that “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 concluded § 8-42-105(4) introduces a limited concept of “fault” in the Workers’ Compensation Act which focuses on the reason or reasons for the termination of employment. The court has held that the concept of “fault” does not require proof the claimant acted with an intentional state of mind Johnston v. Industrial Claim Appeals Office (Colo.App. No. 99CA1284, April 27, 2000) (not selected for publication). To the contrary, a claimant is “responsible” if the claimant acted volitionally or exercised some control in light of the totality of the circumstances. In other words, the crucial issue is whether the claimant precipitated the termination of her employment by a volitional act which she should reasonably expect to result in the loss of employment. Cf. Padilla v. Digital Equipment Corp. 902 P.2d 414 (Colo.App. 1994), aff’d Padilla v. Digital Equipment Corp., 908 P.2d 1185 (Colo.App. 1995).
We are bound by the ALJ’s factual determinations in this case if supported by substantial evidence. Section 8-43-301(8), C.R.S. 2002. This standard requires us to review the evidence in the light most favorable to the prevailing party, and accept the ALJ’s resolution of conflicts in the evidence, as well as the 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, 914 P.2d 411 (Colo.App. 1995).
The claimant’s arguments notwithstanding, the record supports the ALJ’s pertinent findings, and the findings support a conclusion that the claimant acted volitionally when she erroneously told Esters that the van was properly registered and she had proof of insurance. As found by the ALJ, the claimant was present in the van on June 8 when a traffic citation was issued for expired plates and no proof of insurance. Contrary to the claimant’s further contentions, she did not testify that her boyfriend told her the matters had been corrected. Rather, the claimant testified she told her boyfriend to correct the problems and she assumed he had complied with that instruction. (Tr. pp. 40-41, 49).
Furthermore, there can be no dispute the claimant had control over the information she provided to Esters on June 11. Insofar as the claimant told her boyfriend to correct the problems, but had no actual knowledge that the registration had been renewed, she could have told Esters she did not know whether the plates were valid. However, the claimant did not tell Esters she did not know. Nor did the claimant state that she would have to look at the vehicle, or call her boyfriend or the motor vehicle department before she would be able to answer his questions. Instead, the record contains substantial evidence the claimant told Esters five to eight times that the van was properly registered when she did not know whether that information was true or not. (Tr. pp. 62, 63, 107; Esters depo. p. 17). See Division of Employment and Training v. Industrial Commission, 706 P.2d 433 (Colo.App. 1985) (a person makes a false representation when the representation is made with an awareness that the maker did not know whether it was true or false). The claimant thereby exercised control over the circumstances so as to support a determination that the claimant acted volitionally in the separation. See Collins v. Industrial Claim Appeals Office, 813 P.2d 804 (Colo.App. 1991).
We also reject the claimant’s contention that the record fails to support the ALJ’s finding that “Esters determined the claimant had repeatedly lied to him about the van’s registration.” (See Finding of Fact 9). Esters stated that he thought the claimant was innocent in the initial contact with the Gilcrest officers that prompted them to stop the van. (Tr. p. 108; Esters depo. p. 10). However, the claimant incorrectly contends Ester’s statement pertained to her statements on June 11. To the contrary, Esters rejected the notion that the claimant’s erroneous statements were innocent mistakes. (Tr. p. 109).
Moreover, the ALJ’s finding that the claimant volitionally violated the respondent’s truthfulness policy during a disciplinary period in which she knew that another personnel violation might result in the termination of her employment supports his conclusion that the claimant is responsible for the termination of employment. Consequently, the ALJ did not err in denying temporary disability benefits.
IT IS THEREFORE ORDERED that the ALJ’s order dated December 20, 2002, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
__________________________________ Kathy E. Dean
__________________________________ Dona Halsey
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, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed June 24, 2003 to the following parties:
Michelle Richardson, 9772 CR 26, Ft. Lupton, CO 80621
Kate Tremblay, Risk Management Department, Larimer County, P. O. Box 1190, Ft. Collins, CO 80522-1190
Marc Gallegos, TRISTAR Risk Management, P. O. Box 5007, Denver, CO 80217-5007
William F. Garcia, Esq., 912 8th Ave., Greeley, CO 80631 (For Claimant)
Kim D. Starr, Esq., 2629 Redwing Rd., #330, Ft. Collins, CO 80526 (For Respondent)
BY: A. Hurtado