W.C. No. 4-609-400.Industrial Claim Appeals Office.
July 20, 2006.
FINAL ORDER
The claimant seeks review of a corrected order entered by Administrative Law Judge Friend (ALJ), which determined that she was responsible for her separation from employment and terminated her temporary total disability (TTD) benefits. We affirm.
The ALJ’s findings and conclusions are summarized as follows. During the spring of 2002, the employer purchased contracts to operate postal stations, which included the mall station and the north station. The claimant worked for the previous owner of the contracts and continued to work for the employer. She managed the mall station and her duties included completing and maintaining records, maintaining and overseeing all cash, supervising and training new employees, completing internal audits, and completing daily deposits and reports. She was also to communicate with the owner about problems.
The claimant sustained a work-related injury on March 15, 2004, when she slipped and fell. On the same date, the treating physician restricted her from work duties. On April 1, 2004, the physician released the claimant to modified employment with restrictions. During the same month the employer asked the claimant when she would be release to work and the claimant repeatedly advised the employer she did not have a release. The employer had modified jobs within the claimant’s restrictions that were available in April 2004, and the employer would have offered the claimant such work if she had informed it of her restrictions. However, the employer failed to make provide the claimant with a written offer of modified employment.
Through March 2004, the stations lost about $50,000.00 due to shortages in deposited payments to the U.S. Postal Service. The employer investigated the matter of the shortages in conjunction with the Postal Service. The employer terminated the claimant on June 8, 2004, based on the results of the investigation. The claimant was, at a minimum, an ineffective manager who failed to maintain records and reports, maintain and oversee cash, or complete daily deposits and reports. Concerning the shortages, she either failed to adequately train or supervise employees or personally removed cash from deposits. The claimant testified on her own behalf; however, the ALJ deemed her testimony to be inconsistent and incredible. The ALJ therefore determined that the claimant was at fault for her termination and ordered that her TTD benefits be correspondingly terminated on the effective date of the respondents’ petition to terminate benefits.
Under § 8-42-103(1)(g), C.R.S. 2005 and § 8-42-105(4), C.R.S. 2005 (the termination statutes), a claimant who is responsible for the termination of regular or modified employment is not entitled to temporary disability benefits absent a worsening of condition which reestablishes the causal connection between the injury and the wage loss. See Anderson v. Longmont Toyota, 102 P.3d 323 (Colo. 2004). The concept of “responsibility” reintroduces into the Workers’ Compensation Act the concept of “fault” as used in termination cases before the supreme court’s decision in PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995). Colorado Springs Disposal v. Industrial Claim Appeals Office, 954 P.2d 637 (Colo.App. 1997). Thus, 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. 1985); Ellis v. All American Home of Colorado, Inc., W.C. No. 4-544-396 (June 26, 2003), aff’d., Ellis v. Industrial Claim Appeals Office,
Colo. App. No. 03CA1356, April 1, 2004 (not selected for publication). The determination of the fault issue is ordinarily one of fact for resolution by the ALJ. Padilla v. Digital Equipment Corp., supra. See also, Chavez v. B B Dunham Electric, W.C. Nos. 4-595-599 4-596-277 (December 10, 2004).
The claimant asserts that the ALJ erred in terminating her TTD benefits. According to the claimant, the failure to return her to modified employment after her injury irrefutably results in her wage loss resulting from her disabling injury, rather than from her being terminated for cause. The claimant would essentially require that TTD benefits be continued in every case in which the affected employee remained off work at the time of termination from employment for cause. In support of this assertion, the claimant argues that to do otherwise would allow employers to manufacture a false reason to terminate an injured employee in order to stop TTD benefits, thereby preventing TTD benefits “when the claimant never had the ability to return to work after the injury.” Claimant’s Brief at 25. However, the ALJ did not find that the employer arbitrarily fired the claimant. Instead, he found that the claimant was responsible for her separation from employment. In addition, the ALJ found that the claimant in this case was eligible to return to modified duties, which were available, but were never offered.
We conclude that the ALJ properly applied the termination statutes. The claimant, citing language from Anderson v. Longmont Toyota, supra, contends that the termination statutes do not apply because the claimant was not returned to modified employment at the time she was terminated. However, Anderson v. Longmont Toyota interpreted the termination statutes as not repealing the authority to reopen workers’ compensation awards in cases involving a worsened condition. The case in front of us does not involve such a claimed worsening of condition. Moreover, in Colorado Springs Disposal, 58 P.3d at 1063, the court noted that nothing in the context of the termination statutes mandates the restrictive view, as proposed by the claimant here, that “employment” means only “modified employment.” The court concluded that the term “employment” as used in the termination statutes it not ambiguous and encompasses both modified and regular employment. We do not read Anderson v. Longmont Toyota
as compelling a different result here. See also, Grisbaum v. Industrial Claim Appeals Office, 109 P.3d 1054, 1056 (Colo.App. 2005) (statements in Anderson v. Longmont Toyota not interpreted as limiting the application of the termination statutes to claims involving modified employment).
The claimant also asserts that the evidence adduced at hearing does not support the ALJ’s determination that she is responsible for her termination from employment. 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, 740 P.2d 999 (Colo. 1987) ; 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. Substantial evidence is that quantum of proof which would support a reasonable belief in the existence of a fact without regard to contradictory evidence and conflicting inferences. Ackerman v. Hilton’s Mechanical Men, Inc., 914 P.d. 524 (Colo.App. 1996). 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).
Here, the ALJ’s findings are sufficient to permit appellate review, and the findings indicate that the ALJ resolved conflicts in the evidence. See Riddle v. Ampex Corp., 839 P.2d 489
(Colo.App. 1992). There is substantial evidence to support the ALJ’s finding that the claimant was terminated because of her direct involvement with the cash shortages. The ALJ’s findings are supported by substantial evidence in the record and the order on termination is consistent with the applicable law. We perceive no error in the ALJ’s order.
The ALJ determined that the claimant was responsible for her termination from employment because she either failed to sufficiently train or supervise other employees or took cash from deposit envelopes. In reaching this determination, the ALJ implicitly credited the testimony of Mr. Morales, a postal inspector. Mr. Morales’s testimony supports the ALJ’s corresponding findings. He testified that two employees supervised by the claimant both told him in separate interviews that they were told by the claimant to leave deposit envelopes unsealed so the claimant could verify their deposits. Tr. (6/27/05) at 99-101. Mr. Morales also testified that, based on certain losses occurring on dates on which the claimant completed the bank deposits, together with the testimony of the employees about being advised by the claimant not to seal deposit envelopes, he believed that the claimant was responsible for some of the shortages. Tr. (6/27/05) at 109. Moreover, the owner of the employer, Mr. Martinez, testified that he terminated the claimant, in part, due to the postal inspector’s reports. Tr. (6/27/05) at 17. Furthermore, the ALJ found the claimant’s testimony to be “inconsistent and incredible.” Order at 7, ¶ 28. The ALJ’s credibility determinations are binding except in extreme circumstances, and there is ample support for the ALJ’s determination in this case . Arenas v. Industrial Claim Appeals Office, 8 P.3d. 558 (Colo.App. 2000).
IT IS THEREFORE ORDERED that the ALJ’s Corrected Order dated August 16, 2005, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ John D. Baird
___________________________________ Thomas Schrant
Sharon George, Durango, CO, Toni Martinez, T M, Inc., Durango, CO, Rhonda Norris, State Farm Fire Casualty Co., Lakewood, CO, Brenda Carrillo, Subsequent Injury Fund, Division of Workers’ Compensation — Interagency mail, Robert C. Dawes, Esq., Durango, CO (For Claimant).
Cheryl A. Martin, Esq., Grand Junction, CO (For Respondents).
ORDER
The respondents seek review of an order entered by Administrative Law Judge Felter (ALJ), issued on August 17, 2005, imposing penalties. However, the ALJ’s order does not appear in the record. Under these circumstances, the record must be remanded for completion of the record. Section 8-43-301(9), C.R.S. 2005.
IT IS THEREFORE ORDERED that the matter is remanded to the Office of Administrative Courts for completion of the record in accordance with this order. Once the record is complete, the Office of Administrative Courts shall retransmit the matter for our review.