W.C. No. 4-654-154.Industrial Claim Appeals Office.
March 20, 2006.
FINAL ORDER
The claimant seeks review of an order dated November 1, 2005 of Administrative Law Judge Mattoon (ALJ), which concluded that the claimant was at fault for the termination of his employment and granted the respondents’ petition to terminate temporary total disability (TTD) benefits. We affirm.
The claimant sustained an admitted industrial injury on June 22, 2005. The claimant was put on work restrictions by the authorized treating physician (ATP). When the claimant was placed on work restrictions by the ATP he was offered and accepted light duty work with the employer.
When the claimant originally applied for his position, he filled out a written application for employment. The application asked “Have you ever been convicted of or plead guilty (including pleas held in abeyance or under a deferral program) to any criminal offense (including DUI) except for minor traffic violations?” The claimant answered no to this question. The application states that the applicant promises that the information set forth is true and that any false statement is a violation of the Employer’s policy, and could lead to immediate termination if the application is hired. The claimant signed the application directly below this statement.
When the claimant came to perform his light duty work, it became necessary to run a background check. The employer’s policy is to run a routine background check on anyone working in the office, because of the access to confidential information and money. The background check revealed the claimant did have a criminal history, including distribution of narcotics and auto theft. When the employer received the results of the background check on June 29, 2005, the claimant was terminated for making a false statement. The respondents filed a petition to terminate TTD effective August 1, 2005.
The ALJ found that the claimant was aware when he signed the application for employment that a false statement could subject him to immediate termination. He exercised sole control over what information he gave on the application, and he chose to make a false statement. The ALJ determined that the claimant was responsible for the termination of his employment and granted the respondents petition to terminate TTD.
The claimant has not filed a brief in support of his petition to review and, therefore, the effectiveness of our review is severely limited. Ortiz v. Industrial Commission, 734 P.2d 642
(Colo.App. 1986). The claimant’s petition to review objects to the ALJ’s order by posing the following questions:
1. May an employer offer limited duty employment to an injured worker which the injured worker is not qualified to perform and, thereafter, argue that the lack of qualification is Claimant’s fault and refuse to pay temporary total disability benefits?
2. May an employer treat an injured worker in a manner different than it would treat a non-injured worker?
We are not convinced that the answers to these questions would change the outcome of the case. However, we have reviewed the record and perceive no basis for setting aside the ALJ’s order. Under § 8-43-301(8), C.R.S. 2005, we are precluded from disturbing the ALJ’s order unless the ALJ’s findings of fact are insufficient to permit appellate review, the ALJ has not resolved conflicts in the evidence, the record does not support the ALJ’s findings, the findings do not support the order, or the order is not supported by the applicable law.
The ALJ found the claimant was “responsible” for the termination of employment within the meaning of § 8-42-103(1)(g), C.R.S. 2005, and § 8-42-105(4), C.R.S. 2005 (collectively the termination statutes). Consequently, the ALJ granted the respondents’ petition to terminate TTD. Under the termination statutes, a claimant who is responsible for a termination of regular or modified employment is not entitled to temporary disability benefits absent a worsening of condition which reestablishes the causal connection between the injury and the wage loss. See Anderson v. Longmont Toyota, 102 P.3d 323 (Colo. 2004). The concept of “responsibility” reintroduces into the Workers’ Compensation Act (the Act) the concept of “fault” as used in termination cases before the supreme court’s decision i PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995) Colorado Springs Disposal v. Industrial Claim Appeals Office, 954 P.2d 637 (Colo.App. 1997). Thus, the fault determination depends on whether the claimant “performed some volitional act or otherwise exercised a 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. 1985); 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 determination of the fault issue is ordinarily one of fact for resolution by the ALJ. Padilla v. Digital Equipment Corp., supra
Here, the ALJ’s findings are sufficient to permit appellate review, and the findings indicate that the ALJ resolved conflicts in the evidence. See Riddle v. Ampex Corp., 839 P.2d 489
(Colo.App. 1992). There is substantial evidence to support the ALJ’s finding that the claimant was terminated because of the false statement on the application for employment. The ALJ’s findings are supported by substantial evidence in the record and the order on termination is consistent with the applicable law. We perceive no error in the ALJ’s order.
IT IS THEREFORE ORDERED that the ALJ’s order dated November 1, 2005, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Thomas Schrant
Derrick Carmichael, Colorado Springs, CO, Jo Leen Slack, SOS Staffing Services, Inc., Salt Lake City, UT, Insurance Company of the State of Pennsylvania, c/o Heather Lindsay, ACE/ESIS, Portland, OR, William A. Alexander, Jr., Esq., Colorado Springs, CO, (For Claimant).
Tiffany L. Scully, Esq., Denver, CO, (For Respondents).