W.C. No. 4-782-977.Industrial Claim Appeals Office.
April 12, 2011.
FINAL ORDER
The claimant seeks review of an, order of Administrative Law Judge Broniak (ALJ) dated October 13, 2010 that denied the claimant’s claim for temporary disability benefits after February 26, 2010. We affirm.
A hearing was held on the issue of whether the claimant’s temporary total disability benefits should be terminated because he was responsible for the termination of his employment. Following the hearing the ALJ entered factual findings that for the purposes of this order may be summarized as follows. The claimant completed an application for employment at the time of his hiring, which contained an advisement that any false information or omission might result in his discharge if discovered at a later date. The claimant’s native language is Spanish and he obtained the assistance of an interpreter when completing the application. The claimant provided an apparently valid permanent resident card and social security card at the time of hire; however, both were false and were obtained from a friend arid co-worker, Samuel Alvarez.
The ALJ further found that the claimant sustained a compensable injury to his foot and ankle on January 21, 2009 and was temporarily disabled during his treatment for the injury, which included several surgeries, At the end of February 2010 the employer discovered that the claimant’s work authorization documents had been falsified and he was discharged. When questioned about the matter the claimant admitted that his name and social security number were falsified and that his social security card and permanent resident card were invalid. The ALJ found that the employer had not intentionally hired the claimant despite knowing that he had no work authorization and she found that
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Alvarez had not acted as an agent of the employer’s in procuring the claimant’s false documentation. The ALJ found that the claimant’s conduct in providing invalid documents and a false social security number was volitional and that he was at fault for his resulting discharge.
Based on her factual findings, the ALJ concluded that the claimant was responsible for his termination of employment and she ordered his temporary disability benefits discontinued as of the date of his discharge.
The claimant appealed and makes several arguments. He argues that the ALJ erred in excluding evidence that the employer engaged in a practice of hiring undocumented workers. The claimant also argues that the ALJ erred in concluding that the claimant was responsible for his termination from employment. The claimant also argues that the ALJ erred in rejecting the claimant’s argument that the employer was estopped from; asserting that the claimant was responsible for his termination from employment. However, we have reviewed the record and considered the claimant’s arguments and we are unpersuaded that the ALJ committed reversible error or abused her discretion.
The statutory basis for the ALJ’s denial of temporary total disability benefits here is § 8-42-103(1)(g), C.R.S. and § 8-42-105(4), C.R.S. (commonly referred: to as “the termination statutes; “). Under the termination statutes a claimant who is responsible for the 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 concept of “fault” as used in termination cases before the supreme court’s decision in 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, See also, Chavez v. B B Dunham Electric, W.C. Nos. 4-595-599 4-596-277 (December 10, 2004),
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I.
The claimant first argues that the ALJ erred in precluding evidence of the employer’s “conspiracy” to hire undocumented employees. Specifically, the claimant argues that Alvarez, who provided the claimant with falsified documents, was an agent of the employer who recruited undocumented workers and provided them with falsified documents.
During the claimant’s testimony, the claimant’s attorney asked him whether Alvarez was a “legal resident” of the United States, which elicited an objection from the respondents. Tr. (May 24, 2010) at 70. The claimant’s attorney stated that he was attempting to show that Alvarez was the “agent” of the employer and engaged in a conspiracy, presumably to hire employees without work authorization. After some discussion, the ALJ ruled that the claimant’s attorney: could adduce evidence intended to show that Alvarez was an agent of the employer. Tr. (May 24, 2010) at 75. The attorney then continued his direct examination of the claimant, who testified that Alvarez stated to him that the employer would hire “nonresidents of the United States,” and that the documentation required would be a “number of a social security and a resident card.” Tr. (May 24, 2010) at 81-82. He further testified that Alvarez assisted him in obtaining a falsified social security card and residency; card, and that he assisted other employees in obtaining similar falsified documents. Tr. (May 24, 2010) at 82. The claimant testified that he understood from Alvarez that the employer did not conduct any investigation into the legality or validity of the documents.
Some further proceedings were held and the claimant’s attorney argued to the ALJ that a sufficient showing had been made that Alvarez was an agent of the employer’s, that they were engaged in a conspiracy, and that the claimant’s testimony concerning Alvarez’s statements should be admitted despite its hearsay nature. The ALJ ruled that the claimant had made an insufficient showing that Alvarez was a “party-opponent” by virtue of his supposed status as an agent of the employer. She further ruled that the claimant had not shown a conspiracy to hire workers without work authorization. Accordingly, she concluded that the testimony was inadmissible and she denied the claimant’s request that it be admitted under CRE 801(d)(2)(A) or (E). We perceive no error or abuse of discretion in this regard.
Section 8-43-210, C.R.S. contains the basic evidentiary provisions applicable to workers’ compensation claims in Colorado, It states that the Colorado rales of evidence and requirements of proof for civil nonjury cases in the district courts shall apply in all hearings. State Dept. of Labor and Employment v, Esser 30 P.3d 189 (Colo. 2001), The ALJ has broad discretion in the conduct of evidentiary proceedings, including in the admission or exclusion of evidence. IMPC Transportation Co. v. Industrial Claim Appeals Office, 753 P.2d 803 (Colo. App. 1988). We therefore review the ALJ’s ruling
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in this instance under the abuse of discretion standard. See Rennaissance Salon v. Industrial Claim Appeals Office, 994 P.2d 447 (Colo. App, 1999) (reviews of orders concerning the conduct of administrative hearings are subject to the abuse of discretion standard). An abuse of discretion does not occur unless the ALJ’s order is beyond the bounds of reason, as where it is unsupported by the record or contrary to the law. Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. App. 1993).
Here, as noted, the claimant asserted that the testimony regarding Alvarez and his conduct in providing falsified documents should be admitted on the ground that he was a “party opponent” by virtue of his agency relationship with the employer. However, the ALJ was unpersuaded by the claimant’s testimony that such a relationship existed, or that Alvarez had conspired with’ the employer. This was certainly a reasonable inference from the claimant’s testimony, which was essentially that-Alvarez provided, him information about the employer’s willingness to hire employees without work authorization and also that Alvarez provided him with false documents. The claimant did not testify that Alvarez was authorized or even encouraged by the employer to provide that information or those services or that he was acting on the employer’s behalf in any way at all. Assuming that the claimant’s testimony would have supported the inferences urged by the claimant, the ALJ was not compelled by the testimony to draw them. She did not and, accordingly, she did not abuse her discretion in excluding the testimony regarding Alvarez’s statements to the claimant.
The claimant also argues that the ALJ abused her discretion in excluding evidence regarding the number of his co-workers who were undocumented to work in the United States. “The claimant’s attorney asked the claimant whether he had spoken with the 20 Spanish-speaking employees to determine which of them were “illegal residents.” Tr. (May 24, 2010) at 111; . The respondents objected on the ground that the claimant’s testimony regarding: his conversations with other employees constituted hearsay and the claimant’s attorney responded that his intent was to “show that the employer knew that they were illegal”. Tr. (May 24, 2010) at 112. The ALJ then sustained the objection, not on the asserted grounds that the testimony was hearsay, but, on the ground that it was not relevant to the employer’s knowledge. Tr. (May 24, 2010) at 112. The ALJ remarked that the claimant’s knowledge regarding the status of other employees could not be imputed to the employer. We agree with the ALJ that this testimony had only limited relevance to the ultimate issue before the ALJ, which was whether the claimant acted volitionally in submitting falsified documents at the time of his hire. Her exclusion of the testimony did not exceed the bounds of reason and was not an abuse of discretion.
II.
The claimant also argues that the ALJ erred in concluding that he was responsible for the termination of his employment. He argues that there is no evidentiary support for
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the ALJ’s finding that he should have known that his use of false documents might have resulted in his discharge. We conclude that substantial evidence supports her findings and that she correctly applied the relevant legal standards.
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, 740 P.2d 999 (Colo. 1987); Windom v. Lawrence Construction Co., W.C. No. 4-487-966 (November 1, 2002).
Thus, we must uphold the ALJ’s pertinent findings if supported by substantial evidence in the record. Section 8-43-301.(8). C.R.S. Substantial evidence is that quantum of proof which would support a reasonable belief in the existence of a fact without regard to contradictory evidence and conflicting inferences. Ackerman v. Hilton’s Mechanical Men, Inc., 914, P.d. 524 (Colo. App. 1996). This is a narrow standard of review which requires us to view the evidence in a light most favorable to the prevailing party, and to defer to the ALJ’s credibility determinations, resolution of conflicts in the evidence, and plausible; inferences drawn from the record. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo. App. 1995). The ALJ is not required to credit the testimony of a witness, even if it is; uncontradicted and unrebutted.” `Levy v. Everson: Plumbing, Co., Inc., 171 Colo. 468, 468 P.2d 24 (1970); Cary v. Chevron U.S.A., Inc., 867 P.2d 117 (Colo. App. 1993). Further, evidence not specifically credited by the ALJ is presumed to have been rejected Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo. App. 2000).
Here, we do not understand the claimant to be contesting the factual findings supporting the conclusion that the claimant acted volitionally in submitting falsified documents to the employer in order to secure employment. In any event, those findings are amply supported by the record and they in turn support the conclusion that the claimant’s conduct was volitional. The claimant acts volitionally if he exercises some control or choice over the circumstances leading to the discharge such that he can be said to be responsible for the separation. Richards v. Winter Park Recreational Assoc., 919 P.2d 933 (Colo. App. 1996). The court of appeals has stated that “acting with `volition’ generally means having the power or ability to choose and decide’ or to exercise `some control over the circumstances,’ as opposed to acting in a manner that is `essentially involuntary’ or accidental.”Starr v. Industrial Claim Appeals Office, 224 P.3d 1056 (Colo. App. 2009). Here, the findings that the claimant was “fully aware” of the prerequisites for his employment and that he was aware that he was submitting falsified documents are fully supported by the record.
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Further, the ALJ’s finding that the claimant was aware that his conduct could lead to his discharge from employment is amply supported by the record. In support of his argument the claimant recites facts from which the ALJ might have inferred that he was not aware that he would be discharged when his illegal employment status was discovered. However, the existence in the record of evidence from which the ALJ might have reached a different result does not provide a basis for relief on appeal. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo. App. 2002). Rather, the dispositive issue on appeal is whether the factual findings are supported by substantial evidence. Here, the ALJ found that the claimant submitted an application that contained the advisement that any false information might result in his-discharge. That finding, which is supported by the record; is; sufficient to support the ALJ’s inference that he was aware that he could be discharged if his; lack of work authorization was discovered.
The claimant also urges that an “exception” be created and that “falsified documents should not be; considered a volitional act for purposes of the termination statute” where the employer was aware of the employee’s true status but did not discharge him until the employer became liable for workers’ compensation benefits. The claimant argues that “equity and public policy” require such an exception. We have no authority to carve out an “exception,” which is contrary to the plain meaning of the termination statutes and to the case law construing them. Kraus v. Artcraft Sign. Co., 710 P.2d 480; (Colo. 1985) (court will not create new rights by reading nonexistent provision into Act).”
Similarly, we are unpersuaded by the claimant’s other arguments based upon the goals of the Immigration Reform and Control Act and certain public policies such as deterring employers from firing employees to avoid paying workers’ compensation benefits. Even assuming that the legislature has articulated the broad policies urged by the claimant, his arguments are not supported by the record, by the ALJ’s findings, or by her conclusions. She did not find that the employer conspired to hire undocumented workers, that the, employer was aware of the claimant’s true work, status, or that the employer discharged him to avoid paying workers’ compensation benefits.
III.
The claimant also argues that the ALJ erred in refusing to apply the doctrine of equitable estoppel to bar the employer from raising the termination statutes following the claimant’s termination from employment. We perceive no error in this respect.
Here, the ALJ correctly stated the requirements for a defense of equitable estoppel la this regard, she noted that the elements of equitable estoppel are that; (1) the party to be estopped was aware of the true facts; (2) it was that party’s intent that his or her words or conduct be acted upon by the other party or that those words or conduct were such that
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the other party had a right to believe that they were so intended; (3) that the party asserting the estoppel was ignorant of the true facts; and (4) that party reasonably relied on such words or conduct to his or her detriment. Sneath v. Express Messenger Service, 931 P.2d 565, 569 (Colo. App. 1996). In rejecting the application of the doctrine, the ALJ found that the claimant was “completely aware” of the “true facts” relevant to the claim of estoppel. Thus, the ALJ found that the claimant knew that he was required to be authorized to work and that he was aware that his documents were falsified and that he was not legally authorized to work. In our view the ALJ correctly applied the legal standards. We are unpersuaded by the claimant’s argument that the “true facts” which the claimant needed to know were; that the employer was willing to employ undocumented workers, until they were injured, on the job.
The ALJ’s order here is consistent with our previous order i Barron-Tapia v. Swift Food Company, W. C. No. 4-597-844 (December 8, 2004). In that order we stated the following: “Under the termination statutes the focus is on whether to some degree the claimant had control of the circumstances leading to the termination. Where, as here, the claimant actively and knowingly participates in submitting falsified documents for the purpose of obtaining legally prohibited employment, he exercises some degree of control over the circumstances which ultimately lead to the termination. In our opinion, an employer’s initial participation in or knowledge of the claimant’s illegal conduct does not excuse the claimant’s participation.” In other words, where the ALJ finds that the claimant was aware that he was not authorized to work and that he was submitting falsified documents in order to secure employment, the equitable defense of estoppel is not available to bar the employer from asserting the termination statutes.
Because of our resolution of the substantive issue, it is unnecessary for us to address the respondents’ argument that the ALJ erred in permitting the claimant to assert the doctrine of equitable estoppel where it was not pleaded.
IT IS THEREFORE ORDERED that the ALJ’s order issued October 13, 2010 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ John D Baird
______________________________ Curt Kriksciun
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ERNEST OLAES, 424 32 ROAD, #406, CLIFTON, CO, (Claimant).
ELKHORN CONSTRUCTION CO., Attn: TONY PHILLIPS, C/O: SAFETY DIRECTOR, EVANSTON, WY, (Employer).
INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA, Attn: AMY FUNDEBURK, C/O: GALLAGHER BASSETT SERVICES, INC., ENGLEWOOD, CO, (Insurer).
KILLIAN DEVIS, P.C, Attn: J. KEITH KILLIAN, ESQ., GRAND JUNCTION, CO, (For Claimant).
TREECE, ALFREY, MUSAT BOSWORTH, P.C., Attn: MATTHEW C. HAILEY, ESQ., DENVER, CO, (For Respondents).
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