W.C. No. 4-545-517.Industrial Claim Appeals Office.
January 15, 2004.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Muramoto (ALJ) which denied temporary total disability (TTD) benefits commencing August 5, 2003, the date of the order. The claimant argues the ALJ erred as a matter of fact and law in determining the claimant was responsible for a termination of employment. We affirm.
The parties stipulated to most of the pertinent facts. In February 2002 the claimant was hired as a nurse by the respondent-employer (Cottonwood). On May 8, 2002, the claimant received a written warning for her failure to document the administration of drugs to a patient. On May 10, 2002, the claimant tendered her written resignation, effective May 30, 2002. The claimant resigned because she had accepted a job at another facility.
Following the claimant’s resignation, a Cottonwood administrator (Ruf) and the claimant’s immediate supervisor (Lee) had discussions with the claimant in which the claimant was asked to consider remaining with Cottonwood. The claimant testified that she rescinded her resignation on or about May 17, 2002, but Ruf and Lee denied this assertion.
On May 21, 2002, the claimant suffered injuries to her knees when she was kicked by a patient. It is not disputed that these injuries were disabling, and the respondents admitted liability for TTD benefits.
On May 23, 2002, Lee advised the claimant that Cottonwood would “accept” the claimant’s resignation because Cottonwood had discovered additional problems involving the claimant’s failure to document the administration of medications.
The ALJ credited the testimony of Ruf and Lee that the claimant did not rescind her resignation. Further, the ALJ found the claimant voluntarily resigned for reasons unrelated to the subsequent industrial injury. Consequently, the ALJ concluded the claimant engaged in volitional conduct and was “responsible” for the termination of employment within the meaning of §§ 8-42-103(1)(g) and 8-42-105(4), C.R.S. 2003 (the termination statutes). Because the respondents were seeking to withdraw a prior admission of liability for TTD benefits, the ALJ granted prospective relief and denied TTD benefits from the date of the order.
On review, the claimant argues the evidence does not support the finding that she engaged in volitional conduct which was the cause of the termination. She argues that Cottonwood did not accept the resignation until after the industrial injury. Therefore, the claimant reasons the post-injury wage loss was caused by the injury, not the tentative resignation. The claimant also disputes the sufficiency of the evidence to support the ALJ’s finding that she did not rescind her resignation. Finally, the claimant argues that the resignation may not be considered “volitional” because it occurred before the industrial injury. We find no error.
The termination statutes permanently bar TTD benefits when the claimant is “responsible for termination of employment.” Longmont Toyota, Inc. v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 02CA0441, February 13, 2003). The Court of Appeals has held that the term “employment” means all employment, including the job which the claimant held before the industrial injury. Colorado Springs Disposal v. Industrial Claim Appeals Office, 58 P.3d 1061 (Colo.App. 2002). Indeed, as the Colorado Springs Disposal court noted, the termination statutes were enacted to address numerous fact patterns, including those in PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995), a case where the “acts giving rise to the termination occurred before” the industrial injury. It follows that we reject the claimant’s argument that the termination statutes do not apply to conduct which occurs prior to the industrial injury.
The question of whether a claimant is “responsible” for a termination depends on whether the claimant was at “fault.” Fault in turn depends on a determination of whether the claimant engaged in “volitional conduct” which was the cause of the termination. See Longmont Toyota, Inc. v. Industrial Claim Appeals Office, supra; Colorado Springs Disposal v. Industrial Claim Appeals Office, supra; Ellis v. All American Home of Colorado, Inc., W.C. No. 4-544-396 (June 26, 2003). Conduct is volitional if the claimant exercised some degree of control over the circumstances leading to the termination considering the totality of the circumstances. See Padilla v. Digital Equipment Corp., 902 P.2d 414
(Colo.App. 1984).
In most cases the question of whether the claimant engaged in volitional conduct is a question of fact to be resolved by the ALJ. Ellis v. All American Home of Colorado, Inc., supra. Consequently, 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 is a narrow standard of review which 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 Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
Here, substantial evidence supports the ALJ’s findings that the claimant resigned her employment at Cottonwood on May 10 to accept another job, and never rescinded the resignation despite Cottonwood’s requests that she do so. Although the claimant testified that she withdrew the resignation, the ALJ was not persuaded by that testimony and credited the conflicting testimony presented by Ruf and Lee.
The fact that Lee advised the claimant that Cottonwood “accepted” the resignation on May 23 does not vitiate the ALJ’s conclusion that the claimant was responsible for the separation. In the context of the facts presented here, the ALJ plausibly found that the claimant initiated the termination by voluntarily resigning, and never withdrew the resignation. As Lee testified, in this situation Cottonwood’s “acceptance” of the resignation amounted to nothing more than Cottonwood’s decision to stop asking the claimant to change her mind about resigning. (Tr. Pp. 53, 57-58). The evidence thus supports the ALJ’s finding that the claimant initiated the termination and, therefore, exercised a degree of control over the circumstances leading to the termination.
It is true that some evidence in the record could support a different result. However, the mere existence of conflicting evidence affords no basis for relief on appeal. See Wilson v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 02CA2140, August 14, 2003). Insofar as the claimant makes other arguments, we find them to be without merit.
IT IS THEREFORE ORDERED that the ALJ’s order dated August 5, 2003, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Bill Whitacre
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, Colorado 80203, by filing a Petition to Review with the Court, within twenty (20) days after the date this Order was mailed, pursuant to §8-43-301(10) and § 8-43-307, C.R.S. 2003. 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 order were mailed to the parties at the addresses shownbelow on January 15, 2004 by A. Hurtado.
Nancy Damewood, 13815 Powhaton Rd., Brighton, CO 80603
Cottonwood Care Center, 2311 E. Bridge St., Brighton, CO 80601-2547
Cunningham Lindsey, c/o Jean Sheppard, Gates McDonald, 5665 S.W. Meadows Rd., #401, Lake Oswego, OR 97035
James L. Finegan, Esq., 165 S. Union Blvd., #660, Lakewood, CO 80228 (For Claimant)
Keith E. Mottram, Esq., 1125 17th St., #600, Denver, CO 80202 (For Respondents)