IN THE MATTER OF THE CLAIM OF SAMUEL L. LUCAS, Claimant, v. BREDE-COLORADO, INC., Employer, and LIBERTY MUTUAL INSURANCE COMPANY, Insurer, Respondents.

W.C. No. 4-807-020.Industrial Claim Appeals Office.
November 5, 2010.

FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Cannici (ALJ) dated May 21, 2010, that determined the claimant was not entitled to receive temporary total disability (TTD) benefits subsequent to his termination from employment. We affirm.

The claimant suffered an admitted industrial injury to his right foot on October 12, 2009. The claimant after undergoing a physical examination was released to light-duty employment. On October 13, 2009 the claimant returned to work at the Colorado Convention Center (Convention Center) and was terminated on the same day. The ALJ found that the claimant precipitated his termination by a volitional act that could reasonably be expected to cause the loss of employment. Therefore the ALJ determined that the claimant was not entitled to receive TTD benefits subsequent to his October 13, 2009 termination from employment.

The claimant argues that the ALJ’s determination was based in significant part on inadmissible hearsay evidence regarding the claimant’s taking without permission a bottle of water. The claimant argues that without the hearsay testimony the ALJ could not reasonably conclude that the claimant was responsible for his termination pursuant to the provisions of § 8-42-105 (4) C.R.S. We are not persuaded by the claimant’s arguments that the ALJ committed reversible error.

Sections 8-42-105(4), C.R.S., and 8-42-103(1)(g), C.R.S. (referred to as the termination statutes), contain identical language stating that in cases “where it is

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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. The burden to show that the claimant was responsible for her 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.; 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.

Here the employer was preparing three halls at the Convention Center for an ADA trade show. Other portions of the Convention Center were being used for a MDMA trade show. The Employer was not involved in the MDMA trade show. The claimant testified that he required a drink of water in order to take pain medications and muscle relaxants for his injuries but was unable to locate a drinking fountain. The claimant admitted that he entered the section of the hall devoted to the MDMA trade show. The General Manager testified that she directed employees not to enter the hall of other vendors during the ADA trade show at the Convention Center. The General Manger testified that the claimant requested a bottle for water but she denied his request because the water was reserved for the clients. However, she directed him to a drinking fountain. The General manager remarked that numerous bathrooms and drinking fountains were available in the ADA convention area and that she specifically directed the claimant not to enter the MDMA trade show in order to obtain water. The general manager explained that the general foreman and the union steward had determined that the claimant had entered an

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MDMA hall and taken a bottle of water. The general manager thus terminated the claimant because he had entered the MDMA convention area and taken a bottle of water in contravention of employer’s policies.

The claimant argues that there was no admissible evidence that he stole a bottle of water. The claimant contends that all the evidence relating to the claimant’s possession of a bottle of water was hearsay in nature. Therefore the claimant argues that the ALJ erred in finding that the claimant was responsible for his termination.

We acknowledge that the ALJ relied upon the general manager’s testimony that the claimant was terminated because he had entered the MDMA convention and taken a bottle of water in contravention of employer’s policies. However, the ALJ also made the following determinations. The general manager credibly testified that she advised employees not to enter the halls occupied by the MDMA convention. She noted that there were security guards at the entrances to the MDMA convention because it was a high profile show and food was available within the halls. The general manager specifically told the claimant not to enter the MDMA trade show in order to obtain water. Although the claimant maintained that he was simply searching for water with which to take his medications, he acknowledged that he entered the MDMA trade show while searching for water. Moreover, in contrast to the claimant’s testimony, physicians did not prescribe medication for the claimant’s industrial injury but noted that he should use Tylenol as needed. By entering the MDMA trade show in direct contravention of employer’s policies the claimant precipitated his termination by a volitional act that could reasonably be expected to cause the loss of employment. The ALJ concluded that the respondents had demonstrated that it was more probably true than not that the claimant committed a volitional act or exercised some control over the circumstances surrounding his October 13, 2009 termination from employment with the employer.

We do not agree with the claimant’s argument that without the hearsay testimony the ALJ could not reasonably conclude that the claimant was responsible for his termination We read the ALJ’s order as determining, after an examination of the totality of circumstances, that the claimant by entering the MDMA trade show in direct contravention of employer’s policies precipitated his termination by a volitional act that could reasonably be expected to cause the loss of employment. Because there is substantial evidence supporting this determination, we are bound by that determination. Section 8-43-301(8), C.R.S; Metro Moving Storage Co. v. Gussert, supra. Therefore, it is not necessary to resolve the issue of whether the ALJ erred in allowing into evidence hearsay statements regarding the claimant’s theft of a bottle of water. See § 8-43-310, C.R.S. (harmless error is to be disregarded); Bodensieck v. Industrial Claim Appeals Office 183 P.3d 684 (Colo. App. 2008); See Eller v. Indus. Claim Appeals Office, 224 P.3d 397, (Colo. App. 2009).

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IT IS THEREFORE ORDERED that the ALJ’s order dated May 21, 2010 is affirmed.

INDUSTRIAL CLAIM APPEALS PANEL

____________________________________ Curt Kriksciun

____________________________________ Thomas Schrant

SAMUEL L. LUCAS, 2727 INGALLS STREET #308, EDGEWATER, CO, (Claimant).

BREDE-COLORADO, INC., Attn: PAM MATHER, C/O: GENERAL MANAGER, 5140, COLORADO BLVD., DENVER, CO, (Employer).

LIBERTY MUTUAL INSURANCE COMPANY, Attn: MAUREEN A. HARRINGTON, ESQ., 1120 LINCOLN STREET, DENVER, CO, (Insurer).

ROBERT W. TURNER, LLC, Attn: ROBERT W. TURNER, ESQ., DENVER, CO, (For Claimant).

LAW OFFICES OF RIC HARD P. MYERS, Attn: MAUREEN A. HARRINGTON, ESQ., LINCOLN STREET, DENVER, CO, (For Respondents).

LIBERTY MUTUAL MIDDLE MARKET, Attn: NATOSHA ADGER, IRVING, TX, (Other Party).

CASEY HAYES, INC., Attn: TIM CASEY, SOUTH BOSTON, MA, (Other Party 2).

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