W.C. No. 4-676-663.Industrial Claim Appeals Office.
December 26, 2007.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Jones (ALJ) dated July 30, 2007, that determined the claimant was responsible for the termination of her employment and denied the claim for temporary total disability benefits (TTD). We affirm.
The ALJ’s pertinent findings of fact are as follows. The claimant sustained an admitted injury on January 27, 2006, while lifting and stacking pallets. After her injury, the claimant was placed on restrictions and provided with modified work by the employer. On May 25, 2006, her primary treating physician released the claimant to return to work without restrictions. The claimant underwent epidural steroid injections on June 23, 2006, a Friday. She then obtained a written work excuse from the doctor excusing her from work for June 23 through June 24, 2006. The claimant last worked on June 22, 2006. The claimant testified that she was still sore following Monday June 26, 2006, and was unable to return to work after the epidural injection on June 23, 2006. The claimant testified that when she went back to work on Tuesday, June 27, 2006, she was advised that she needed a note to excuse her Monday absence prior to returning to work. The claimant did not return to the employer until after July 4, 2006. On June 30, 2006, the employer sent the claimant a letter informing her that she had not reported for work and was therefore on an unauthorized leave of absence. The letter stated that as a result the claimant’s employment was terminated. The claimant never provided any documentation to the employer to explain her failure to report to work.
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The ALJ found that the respondents sustained their burden of proving that the claimant’s termination from employment and resulting wage loss was caused by the claimant’s volitional action in failing to appear for work and in failing to provide the necessary excuse for the absences. The ALJ viewed the evidence as establishing that the claimant was aware of her duty to provide a medical excuse for her absence from work and that she failed to do so. The claimant’s assertion that she could not obtain the necessary medical excuse for her absence from work and therefore did not appear for work and took no action before the July 14 deadline was not credited as justification for the claimant’s inaction. The ALJ denied and dismissed the claimant’s claim for TTD as she had engaged in a volitional act to cause her wage lost after July 1, 2006.
I.
On appeal, the claimant contends that the ALJ erred as a matter of law in finding that she was responsible for her termination from employment. We disagree.
Section 8-42-103(1)(g), C.R.S. 2007 and § 8-42-105(4), C.R.S. 2007 provide 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 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).
The termination statutes provide an affirmative defense to a claim for TTD and the respondents bore the burden of proof to establish their applicability. Witherspoon v. Metropolitan Club W. C. No. 4-509-612 (December 16, 2004). 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). 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. 2007. 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);
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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).
The claimant argues that she testified that she was still in pain on the Monday following the Friday epidural injection. She testified that she telephoned the employer on Monday and stated that she was still sore and would not be in to work. On Tuesday, her employer told her she could not come back without an excuse from her physician and, although she called the doctor’s office, the doctor was on vacation and he was the only one that could provide the note excusing her from work. The claimant contends that she did everything possible to provide the written excuse for the day she missed work and was therefore not responsible for her termination. The claimant contends in this regard that she had no control over the circumstances and was therefore not at fault for her resultant discharge.
However, the ALJ rejected the claimant’s contentions and found that she was responsible for her termination. In support of this determination, the ALJ found that, prior to the injury, the claimant had been taken off the forklift position after three incidents where the claimant was reprimanded for improper operation of the forklift, the last incident resulting in a written disciplinary action, dated January 4, 2006. Tr. at 37. The claimant testified she was not well liked at her job. Tr. at 36. The record reflects disciplinary actions for incidents such as leaving work without notifying management and errors in processing customer orders. Exhibit O P. The claimant was given a written warning on May 4, 2006, that she had accumulated seven points and that eight points would be cause for termination. Tr. at 38, Exhibit O at 17. The claimant testified that she knew her job was in jeopardy and that it would be advisable for her not to give the employer any additional reasons or basis, which could result in her termination. Tr. at 36.
The claimant had obtained a written work excuse from Dr. Kawasaki for her injection on June 23, 2006 and for the next day on June 24, 2006. The claimant knew she needed this written note in order to excuse her absence from work. Tr. at 43. The claimant testified that the injection on June 23, 2006, did not do anything to help her symptoms of low back pain. Tr. at 20. However, the ALJ found the claimant’s testimony is contradicted by the medical records wherein it was documented that no problems were identified after the procedure and the claimant told the nurse that she had been better over the weekend with “a little more pain” at present. Exhibit M; Tr. at 43-44. The ALJ deemed the medical record more credible evidence of the claimant’s condition than the claimant’s testimony.
The ALJ found the evidence established that the claimant had until July 14 to produce the necessary work excuse and present it to her employer in an attempt to reverse
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the termination decision. Exhibit Q, Tr. at 23. The evidence further established that the claimant did not produce evidence to the employer in support of the retention of her employment. The ALJ expressly found the claimant’s testimony about the June 30 letter advising her of her termination was conflicting and was not deemed credible. The claimant testified alternately that she had not received the letter when she met with Mr. Krabbe in early July; yet, she further testified that she knew she had been terminated. Tr. at 24 45.
The record therefore provides evidentiary support for the ALJ’s corresponding conclusion that the claimant was responsible for her separation from this employment. As the claimant recognizes, there was conflicting evidence in the record. However, the existence in the record of conflicting testimony or of evidence that would support a contrary result does not provide a basis for setting aside the ALJ’s order See Mountain Meadows Nursing Center v. Industrial Claim Appeals Office, 990 P.2d 1090 (Colo.App. 1999) (the existence of conflicting evidence does not lessen the import of substantial evidence in support of a finding).
II.
The claimant next contends that the ALJ failed adequately to consider the issue of the hostile work environment created by the claimant’s supervisor and the impact that might have had on the termination. We again disagree.
The ALJ specifically noted in Findings of Fact ¶ 14 at 4 as follows:
The claimant presented evidence at hearing about the employer’s alleged action to create a hostile work environment. The respondents also presented evidence allegedly asserting that the claimant failed to perform her duties, both her regular duties and her light duties. Neither party’s assertion was persuasive or dispositive of the issue presented for consideration at this hearing.
The claimant has detailed at length the evidence produced tending to show that there was a hostile work environment and that this was the cause of the claimant’s termination. However, the claimant’s arguments notwithstanding, there is substantial evidence in the testimony of the respondents’ witnesses, the cross-examination of the claimant and the exhibits to support the ALJ’s finding that the claimant was responsible for her termination. Consequently, the existence of other evidence including a possible hostile environment which, if credited, might support a contrary determination does not afford us grounds to grant appellate relief. See Colorado Fuel and Iron Corp. v. Industrial Commission, 152 Colo. 25, 380 P.2d 28 (1963); Casa Bonita Restaurant v. Industrial Commission, 624 P.2d 1340 (Colo.App. 1981).
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The respondents also contend that the ALJ had an independent basis for denial of the claimant’s claim for TTD benefits under § 8-42-105(3)(c), C.R.S. 2007, because on May 25, 2006, the primary treating physician released the claimant to return to work without restrictions. Because we have affirmed the ALJ’s denial of TTD on the basis that the claimant was responsible for the termination of employment it is unnecessary to address this issue.
IT IS THEREFORE ORDERED that the ALJ’s order dated July 30, 2007 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ Curt Kriksciun
_______________________ Thomas Schrant
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CATHY COOPER, EAST 32ND PLACE, AURORA, CO, (Claimant).
LAGASSSE, INC.-DENVER, CO, (Employer).
SENTRY INSURANCE, Attn: KELLY SCHULTZ/KRISTIN P BATTAGLIA, STEVENS POINT, WI, (Insurer).
FRANKLIN D AZAR ASSOCIATES, PC, Attn: JOHN M CONNELL, ESQ., EVANS AVENUE, AURORA, CO, (For Claimant).
WHITE AND STEELE, P.C., Attn: TED A KRUMREICH, ESQ., DENVER, CO, (For Respondents).
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