W.C. No. 4-683-742.Industrial Claim Appeals Office.
June 7, 2007.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Harr (ALJ) dated December 15, 2006, that determined that the claimant was responsible for termination of her employment and that denied the claimant’s claim for temporary disability benefits. We affirm.
The ALJ’s pertinent findings of fact are as follows. The claimant sustained an admitted injury to her lower back while working for the employer when she lifted a cabinet on December 8, 2004. The employer filed a general admission of liability, admitting liability only for medical benefits. The employer referred the claimant to Concentra Medical Center where a nurse practitioner imposed lifting restriction. The claimant returned to work for the employer performing modified duty. On January 6, 2005, the nurse practitioner released the claimant to regular duty. Dr. Reiter placed the claimant at maximum medical improvement (MMI) as of January 6, 2005 with no permanent medical impairment. On January 26, 2005 the claimant telephoned her supervisor to report flu-like symptoms. The claimant failed to call her supervisor on January 27, 2005 or on January 28, 2005. The claimant called her supervisor on January 29th stating she was ready to come back to work the following Monday. She was told she needed to telephone the regional manager. The regional manager informed the claimant on January 29th that she was terminated for failure to call or appear for work on January 27th and January 28th. The employer’s handbook provides that excessive absenteeism or any absence without notice may result in disciplinary action, including
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termination from employment. The claimant returned to Concentra on June 12, 2006 and Dr. Hughes recommended an MRI scan of the claimant’s lumbar spine to rule out disk protrusion or herniation. Dr. Hughes imposed physical activity restrictions and determined that the claimant was not at MMI pending evaluation of her symptoms. He recommended a surgical evaluation and, as a result, Dr. Ogsbury reviewed the MRI and determined that there was no evidence of nerve root compression. Dr. Hughes also referred the claimant to Dr. Ring, who administered epidural steroid injections. Dr. Hughes again examined the claimant on October 16, 2006 and determined that she had reached MMI as of January 6, 2005.
Reading Dr. Hughes’ June 12th report together with his October 16th report the ALJ found that both of the claimant’s authorized treating physicians (Dr. Reiter and Dr. Hughes) agreed in placing her at MMI as of January 6, 2005. The ALJ further determined that the claimant was responsible for termination of her employment. Accordingly, the ALJ denied temporary disability benefits based upon § 8-42-103(1)(g), C.R.S. 2006 and § 8-42-105(4), C.R.S. 2006 (the termination statutes). The ALJ also weighed the competing evidence and determined that the claimant’s average weekly wage was $288.61.
The claimant filed a petition to review the order, alleging generally that the ALJ erred in determining that the claimant was terminated for cause and in calculating the claimant’s average weekly wage. However, the claimant has not filed a brief in support of his petition to review and therefore the scope of our review is limited. Ortiz v. Industrial Commission, 734 P.2d 642 (Colo.App. 1986). Moreover, the claimant has not arranged to have a transcript prepared and included in the record on appeal and therefore we must presume that the ALJ’s factual findings are supported by substantial evidence in the record. Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo.App. 1988). Under these circumstances we perceive no reversible error.
I.
As noted, the claimant first argues that the ALJ erred in denying temporary disability benefits based upon the claimant’s termination from her employment. To receive temporary disability benefits, a claimant must establish a causal connection between the industrial disability and the loss of wages. Section 8-42-103(1)(g), C.R.S. 2006 and §8-42-105(4), C.R.S. 2006 contain identical language providing that in cases where “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 “appears to introduce into the Act the limited concept of `fault’ used in termination cases before the supreme court’s decision in” PDM Molding Inc. v. Stanberg, 898 P.2d 542
(Colo. 1995). Under this standard, the fault determination depends on whether the claimant performed some volitional act or otherwise exercised a
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degree of control over the circumstances resulting in the termination See Padilla v. Digital Equipment Corp., 902 P.2d 414, 416 (Colo.App. 1994), opinion after remand, 908 P.2d 1185 (Colo.App. 1995).
Generally, the question of whether the claimant acted volitionally, and therefore is “responsible” for a termination from employment, is a question of fact to be decided by the ALJ, based on consideration of the totality of the circumstances. Gonzales v. Industrial Commission, supra; Jeppsen v. Huerfano Medical Center, supra. Windom v. Lawrence Construction Co., W.C. No. 4-487-966 (November 1, 2002). Given the absence of a transcript, we must presume that there is support in the record for the ALJ’s dispositive factual findings that the claimant was aware of the employer’s rule requiring her to telephone in case she intended to be absent, that she violated that rule, and that she was terminated as a result of that violation. These factual findings support the legal conclusion that the claimant was responsible for her termination from employment within the meaning of the termination statutes. Therefore, we are bound by the factual findings and we perceive no legal error in the ALJ’s denial of temporary disability benefits. Finally, we note that, in any event, the ALJ found that the claimant’s authorized treating physicians determined that she reached MMI in January 2005, thus barring her receipt of temporary disability benefits after January 6, 2005.
II.
The claimant also contends generally in her petition to review that the ALJ erred in calculating her average weekly wage because she had concurrent employment. However, the ALJ expressly rejected the claimant’s testimony regarding her wages as not credible and instead relied upon the employer’s wage records.
The ALJ has discretionary authority under § 8-42-102(3), C.R.S. 2006, to calculate the average weekly wage by any method that will render a fair computation of the claimant’s wages. We may not disturb the ALJ’s determination of the average weekly wage unless an abuse of discretion is shown. Coates, Reid Waldron v. Vigil, 856 P.2d. 850 (Colo. 1993). An abuse of discretion exists where the order “exceeds the bounds of reason,” such as where it is not in accordance with applicable law, or not supported by substantial evidence in the record. Rosenberg v. Board of Education of School District #1, 710 P.2d 1095 (Colo. 1985) Coates Reid Waldron v. Vigil, supra. Here the claimant has failed to provide a transcript of the hearing and, therefore, we must presume that the ALJ’s factual findings are supported by the record. Nova v. Industrial Claim Appeals Office, supra. We perceive no legal error in the ALJ’s calculation of the claimant’s average weekly wage that would suggest that he abused his discretion in relying upon the employer’s wage records. Given that we are bound by the ALJ’s factual findings, we perceive no basis on which to interfere with the ALJ’s determination of the average weekly wage.
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IT IS THEREFORE ORDERED that the ALJ’s order dated December 15, 2006, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________ Curt Kriksciun
______________________ Thomas Schrant
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Lilibeth Bagarinao, Aurora, CO, Store Services Group, LLC, Bruce Bailey, Charlotte, NC, Kevin C. Smith, Esq., Florida Ave. Denver, CO, (For Claimant).
Cairns, Nemecheck MacGruder, LLC, Denver, CO, (For Respondents).
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