W.C. No. 4-452-524Industrial Claim Appeals Office.
January 22, 2002.
FINAL ORDER
The pro se claimant seeks review of an order of Administrative Law Judge Gartland (ALJ) which denied his claim for temporary disability benefits commencing November 29, 2000. We affirm.
The claimant sustained a compensable injury on February 18, 2000. In October 2000, the claimant was released to restricted duty and the employer provided work within his limitations. On November 16, 2000, the claimant met with his supervisor to discuss when the claimant might be released to full duty by the treating physician, and the provision of medical documentation concerning the projected release.
On conflicting evidence, the ALJ found that at the conclusion of the November 16 meeting the claimant made a threatening statement to the supervisor. On November 17 the employer suspended the claimant for three days because of the threat, and the employer also warned the claimant that any further threatening behavior would result in immediate termination. However, later that day, the claimant made an obscene gesture to his supervisor, and the supervisor perceived this conduct was threatening. The claimant was then terminated on November 29, 2000, because of the second threat.
Under these circumstances, the ALJ concluded the claimant was “responsible” for his termination from employment within the meaning of § 8-42-105(4), C.R.S. 2001. See also § 8-42-103(1)(g), C.R.S. 2001. Consequently, the ALJ denied the claim for temporary disability benefits commencing November 29, 2000.
On review, the claimant apparently disputes the sufficiency of the evidence to support the ALJ’s findings of fact concerning the reason for the separation from employment. The claimant asserts “he was watched constantly for violations” and that it was his belief that “no matter what would have transpired during the `return to work’ period, management would create a reason for termination due to the severity of how the claimant received his injuries while on company property.” The claimant also asserts that the employer harassed him, and that the allegedly threatening remarks occurred only after he tried to leave the room on three separate occasions. We find no error.
Section 8-42-105(4) provides that in cases where “a temporarily disabled employee is responsible for termination of employment, the resulting wage law shall not be attributable to the on-the-job injury.” We have previously held the question of whether a claimant is “responsible for termination of employment” is a question of fact. Resolution of the issue depends, at least in part, on whether the claimant engaged in “volitional” conduct resulting in the termination See Pace v. Commercial Design Engineering, W.C. No. 4-451-277 (May 15, 2001).
Because the issue is factual in nature, we must uphold the ALJ’s pertinent findings of fact if supported by substantial evidence in the record. Section 8-43-301 (8), C.R.S. 2001. This standard of review requires us to consider the evidence in a light most favorable to the prevailing party, and to defer to the ALJ’s resolution of conflicts of the evidence, credibility determinations, and plausible inferences drawn from the record. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411
(Colo.App. 1995). Further, this standard is one of appellate review, and does not afford us any independent fact-finding authority. Metro Moving and Storage Co. v. Gussert, supra.
The claimant’s argument notwithstanding, the record contains substantial evidence to support the ALJ’s findings of fact concerning the circumstances surrounding the termination. Although the evidence was conflicting, the ALJ resolved the conflicts in favor of the respondents by crediting the testimony of their witnesses. Further, the evidence credited by the ALJ supports a finding that the claimant engaged in “volitional” conduct by threatening his supervisor after being warned not to do so. Consequently, the record contains ample evidence to support the finding the claimant was “responsible” for the termination of employment. Thus, we find no basis for interfering with the ALJ’s denial of temporary disability benefits commencing November 29, 2000.
We note the claimant has attached various documents to his appellate brief, and made various representations of fact. However, the claimant’s representations and attachments are not properly part of the evidence, and such representations may not substitute for that which must appear in the record. Subsequent Injury Fund v. Gallegos, 746 P.2d 71 (Colo.App. 1987).
Finally, we note that we are unable to locate respondents’ exhibits “N” and “O” in the record. However, because the contents of these documents were read into the record, we conclude it is not necessary to remand the matter for completion of the record by inclusion of the documents.
IT IS THEREFORE ORDERED that the ALJ’s order dated April 20, 2001, 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. 2001. 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 January 22, 2002 to the following parties:
Anthony Babcock, 129 S. Lowell Blvd., Denver, CO 80219
Mobile Tool International, 5600 W. 88th Ave., Westminster, CO 80031
Jody Nelson, Transcontinental Insurance Co., P. O. Box 17369 T. A., Denver, CO 80217
John M. Lebsack, Esq., and Stephen G. Sparr, Esq., 950 17th St., #2100, Denver, CO 80202 (For Respondents)
BY: A. Pendroy