W.C. No. 4-631-681.Industrial Claim Appeals Office.
April 24, 2006.
FINAL ORDER
The respondents seek review of an order dated November 2, 2005 of Administrative Law Judge Henk (ALJ) that determined the claimant was not responsible for her termination within the meaning of § 8-42-103(1)(g), C.R.S. 2005, and § 8-42-105(4), C.R.S. 2005 (termination statutes), and subsequent wage loss. We affirm.
The ALJ’s pertinent findings of fact are as follows. The claimant sustained an admitted work related injury to her back on October 9, 2004. She missed some time from work but returned to her regular job, although with restrictions. On January 5, 2005 the claimant called her family physician requesting to be excused from work. The claimant did not contact the authorized treating provider, Concentra, to request an excuse from work. Her family physician wrote a note removing her from work from January 6 to 8, 2005. After the release from work expired, the claimant did not return to work. On January 12, 2005 the employer sent the claimant a letter informing her that the family physician’s release from work had expired and requested an updated physician note by January 31, 2005. The letter informed the claimant that if she failed to provide the documentation requested they would conclude that she had voluntarily abandoned her employment. The claimant’s daughter took a January 14, 2005 note from Concentra to the employer. The employer terminated the claimant for failing to respond to the January 12, 2005 letter by providing an updated medical report.
The ALJ found that the claimant did not fax the report to the corporate office as instructed, but that the claimant, through her daughter, did provide the January 14, 2005, Concentra report to her supervisor. Therefore, the ALJ found that the claimant had substantially complied with the January 12, 2005, letter from the employer and therefore was not responsible for her termination. Findings of Fact, Conclusions of Law, and Order at 3, ¶ 15.
On review the respondents argue that the ALJ’s finding that the claimant was not responsible for her termination is not supported by substantial evidence or the law. The claimant argues that neither the claimant, nor her daughter, testified that the January 14, 2005 Concentra report was delivered to the employer. In our view the ALJ’s inference that the report was delivered to the employer was a reasonable inference from the record. We therefore disagree with the respondents’ argument.
The termination statutes 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). White-Skunk v. QK, Inc., W.C. No. 4-500-149 (October 3, 2002). 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, supra; Jeppsen v. Huerfano Medical Center, supra. 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. 2005. 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).
The respondents contend the evidence compels the conclusion that the ALJ erred in finding the claimant was not responsible for her termination because evidence in the record does not support a finding that the claimant delivered the updated doctor’s note pursuant to the employer’s January 12, 2005 request. We disagree.
The respondents introduced into evidence a medical report from Concentra dated January 14, 2005, which deals with the claimant’s back problems. Exhibit F. The ALJ could reasonably infer that this report constitutes an updated medical report as requested by the employer. The claimant testified that when she got the employer’s January 12, 2005 request she went to the doctor’s office, where she obtained a note and gave it to her daughter to deliver to the employer. Tr. at 19-20. The claimant’s daughter testified that her mother asked her to deliver papers to the employer and that she did so. Tr. at 86. She further testified that she remembered doing this “one time I know for sure.” Tr. at 86.
Whether, as the respondents contend, the daughter’s testimony was weakened on cross examination is not relevant to our review of the ALJ’s order. We are mindful both that she testified that she only “knew” that she delivered a note from Dr. McCallum, and that the employer representative testified that they only received the report from the family physician. Tr. at 57-58, 87, 94. While this evidence might have supported a different result, that fact affords no basis for relief on appeal. Because the ALJ’s determinations are supported by substantial evidence in the record and by reasonable inferences from that record, we may not disturb the order. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo App. 2003). We have reviewed the respondents’ additional arguments and they do not alter our conclusions.
IT IS THEREFORE ORDERED that the ALJ’s order dated November 2, 2005, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksciun
____________________________________ Thomas Schrant
Shirley Davis, Denver, CO, Sally’s Beauty Supply Company, Inc., Denver, CO, Sally’s Beauty Supply Company, Inc., Denton, TX, Evelyn Radmacher, ACE American Insurance Company, Portland, OR Adam McClure, Esq., Lakewood, CO, (For Claimant).
Eric W. Truhe, Esq., Denver, CO, (For Respondents).