W.C. No. 4-563-530.Industrial Claim Appeals Office.
May 19, 2004.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Klein (ALJ) which determined the claimant was “responsible” for a termination from employment and denied temporary total disability benefits from December 10, 2002, and April 29, 2003. We affirm.
The ALJ found, after resolving conflicts in the evidence, that the claimant assaulted his supervisor and was discharged for this conduct. Consequently, the ALJ concluded the claimant was “responsible” for the termination within the meaning of §8-42-103(1)(g), C.R.S. 2003, and § 8-42-105(4), C.R.S. 2003 (termination statutes), and denied temporary disability benefits.
The claimant filed a petition to review citing general allegations of error concerning the sufficiency of the evidence and the correctness of the ALJ’s legal conclusions. The claimant failed to file a brief in support of the petition to review. Consequently, the effectiveness of our review is limited.
The ALJ recognized the correct legal standard for determining whether the claimant was “responsible” for the termination is whether the claimant performed a volitional act or, considering the totality of the circumstances, exercised some degree of control over the circumstances leading to the termination. See Longmont Toyota, Inc. v. Industrial Claim Appeals Office, 85 P.3d 548 (Colo.App. 2003), cert. granted (03SC450, March 8, 2004); Padilla v. Digital Equipment Corp., 902 P.2d 414
(Colo.App. 1994); vacated, 908 P.2d 1185 (Colo.App. 1995); Ellis v. All American Home of Colorado, Inc., W.C. No. 4-544-396 (June 26, 2003), aff’d., Ellis v. Industrial Claim Appeals Office,
(Colo.App. No. 03CA1356, April 1, 2004) (not selected for publication).
The question of whether the respondents proved the claimant was responsible for the termination is usually one of fact for determination by the ALJ. Ellis v. All American Home of Colorado, Inc., supra. Thus, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2003. This standard of review requires us to view the evidence a light most favorable to the prevailing party, and defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003).
Here, the ALJ discredited the claimant’s testimony, and credited the testimony of the claimant’s supervisor and others. The testimony which the ALJ found credible supports the finding that the claimant assaulted the supervisor and was responsible for the termination. Because we may not interfere with the ALJ’s credibility determinations, the order must be upheld.
IT IS THEREFORE ORDERED that the ALJ’s order dated December 10, 2003, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
David Cain
Robert M. Socolofsky
Emilio Beltran, c/o Britton Morrell, Esq., Greeley, CO, Pinneo Feedlot, LLC, Brush, CO, Legal Department, Pinnacol Assurance — Interagency Mail Britton Morrell, Esq., Greeley, CO, for Claimant.
Doug Stratton, Esq. and T. Paul Krueger, II, Esq., Fort Collins, CO.