W.C. No. 4-587-799.Industrial Claim Appeals Office.
September 13, 2004.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Friend (ALJ) which denied temporary disability benefits. We affirm.
The ALJ’s pertinent findings of fact may be summarized as follows. The claimant was hired as a dump truck driver. At a three-month performance evaluation in May 2003, the claimant was warned that he was deficient in his ability to work with others and safely operate the dump truck. These problems continued despite the warning. Therefore, the employer decided to terminate the claimant’s employment on August 11, 2003, the date the claimant was scheduled to return from a vacation with his wife and newborn child.
In June 2003, the claimant reported a work-related injury to his wrist. Effective August 8, 2003, the claimant was medically restricted from all right wrist work. However, the ALJ was not persuaded the claimant was unable to meet the employer’s performance standards. Under these circumstances, the ALJ determined the termination of employment was the result of the claimant’s volitional actions and not the industrial injury. Consequently, the ALJ determined the claimant is barred by §8-42-105(4), C.R.S. 2004, from receiving temporary disability benefits commencing August 11, 2003. The claimant timely appealed.
The claimant’s Petition to Review contains only general allegations of error (see § 8-43-301(2), C.R.S. 2003), and the claimant has not filed a brief in support of the Petition to Review. Consequently, the effectiveness of our review is limited Ortiz v. Industrial Commission, 734 P.2d 642 (Colo.App. 1986).
To receive temporary disability benefits, a claimant must establish a causal connection between the injury and the loss of wages. Section 8-43-103(1)(a), C.R.S. 2003. Section § 8-42-105(4) and identical language in § 8-42-103(1)(g), C.R.S. 2003, provide that “where it is determined that 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, 58 P.3d 1061 (Colo.App. 2002), the court held 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.App. 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 question of whether the claimant’s conduct was volitional is based on the factual circumstances, which are for the ALJ to determine. Aguilar v. Matrix Logistic, Inc., W.C. No. 4-473-075 (December 5, 2002).
Section 8-43-301(8) precludes us from disturbing the ALJ’s order unless the ALJ’s findings of fact are insufficient to permit appellate review, the ALJ has not resolved conflicts in the evidence, the record does not support the ALJ’s findings, the findings do not support the order, or the order is not supported by the applicable law.
We have reviewed the record and the ALJ’s findings of fact. The ALJ’s findings are sufficient to permit appellate review, and the findings indicate that the ALJ resolved conflicts in the evidence based upon his credibility determinations. See Riddle v. Ampex Corp., 839 P.2d 489 (Colo.App. 1992).
The claimant has not provided a transcript of the hearing on February 27, 2004. Under these circumstances we are required to presume the ALJ’s findings of fact are supported by substantial evidence in the record. Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo.App. 1988). Moreover, the ALJ’s factual determinations support the conclusion that the claimant was responsible for the termination of employment and thus, is not entitled to temporary disability benefits based on the subsequent wage loss. See Longmont Toyota Inc., v. Industrial Claim Appeals Office, 85 P.3d 548 (Colo.App. 2003).
IT IS THEREFORE ORDERED that the ALJ’s order dated, March 26, 2004, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ Kathy E. Dean
____________________________________ Dona Halsey
David Desantiago, Fort Collins, CO, Kate Tremblay, Larimer County, Collins, CO, Marc Gallegos, Denver, CO, and Bob Ring, Esq., Collins, CO, (For Claimant)
Anne Smith Myers, Esq. and Willow I. Arnold, Esq., Denver, CO, (For Respondent)