W.C. No. 4-476-826Industrial Claim Appeals Office.
May 17, 2002
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Friend (ALJ) insofar as it denied the claim for temporary total disability benefits commencing June 26, 2001, the date the claimant was terminated from employment. The claimant contends the record does not support the ALJ’s finding that he was “responsible” for termination from employment within the meaning of § 8-42-103(1)(g), C.R.S. 2001, and § 8-42-105(4), C.R.S. 2001 (collectively the termination statutes). We affirm.
The ALJ found that on October 9, 2000, the claimant sustained a compensable injury which rendered him unable to perform the usual duties of his employment. However, the employer accommodated the claimant’s physical restrictions and the claimant returned to work in modified employment.
On November 27, 2000, the claimant was placed on “probation” for tardiness and failure to return from lunch in a timely fashion. The employer notified the claimant that “tardiness in the morning or at lunchtime, for any reason, will be grounds for immediate dismissal.” Nevertheless, the claimant was late returning from lunch on four occasions, and he was terminated from the modified employment on June 26, 2001.
The claimant sought an award of temporary disability benefits following the separation from employment. However, applying the termination statutes, the ALJ found the respondents proved the claimant was “at fault” for the separation. Therefore, the ALJ concluded the claimant was “responsible” for the separation within the meaning of the termination statutes, and the claimant “should not receive temporary total disability as a result of the termination.”
The claimant filed a petition to review. The only specific allegation of error contained in the petition is the assertion that the ALJ’s finding the claimant was “responsible for his termination by the employer” is not supported by substantial evidence in the record. The claimant failed to file a brief in support of the petition to review.
The termination statutes provide that if a temporarily disabled employee “is responsible for termination of employment, the resulting wage loss shall not be attributable to the on-the-job injury.” I Colorado Springs Disposal v. Industrial Claim Appeals Office,
___ P.3d ___ (Colo.App. No. 01CA0464, March 28, 2002), the court stated the term “responsible,” as used in the termination statutes, “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). Thus, we have concluded the question of whether the claimant is “responsible” for the termination depends on whether the claimant performs 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); Bonney v. Pueblo Youth Service Bureau, W.C. No. 4-485-720 (April 24, 2002); Gregg v. Lawrence Construction Co., W.C. No. 4-475-888 (April 22, 2002).
The question of whether the claimant acted with volition in causing the separation is one of fact for determination by the ALJ. See Pace v. Commercial Design Engineering, W.C. No. 4-451-277 (May 15, 2001). Because the issue is factual in nature, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2001. This standard of review requires us to view the evidence in 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. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
We have reviewed the record, including the transcript of the hearing. The ALJ’s findings concerning the circumstances of the claimant’s termination are fully supported by the testimony of the employer’s operations manager. Further, that testimony supports the conclusion the claimant exercised control over the circumstances leading to the termination because he was warned against returning late from lunch, but did so on at least four occasions. The fact the evidence might have supported a contrary finding is immaterial on review.
IT IS THEREFORE ORDERED that the ALJ’s order dated November 27, 2001, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Dona Halsey
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to §8-43-301(10) and § 8-43-307, C.R.S. 2001. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed May 17, 2002 to the following parties:
John Cura, 226 Cleopatra St., Ft. Collins, CO 80524
Standard Process West, Inc., 1513 Webster Ct., Ft. Collins, CO 80524-4725
Curt Kriksciun, Esq., Pinnacol Assurance — Interagency Mail (For Respondents)
Shawn P. Langley, Esq., 1115 11th Ave., Greeley, CO 80631 (For Claimant)
Douglas L. Stratton, Esq., 2629 Redwing Rd., #330, Ft. Collins, CO 80526
BY: A. Pendroy