No. W.C. No. 4-669-016.Industrial Claim Appeals Office.
January 29, 2008.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Harr (ALJ) dated August 23, 2007, that found the claimant was responsible for her termination and denied the claim for temporary total disability (TTD) benefits. We affirm.
The ALJ’s pertinent findings of fact are as follows. The claimant sustained an admitted occupational injury to her right upper extremity, with a date of onset of November 11, 2005. The respondents admitted liability for medical and TTD benefits from November 12, 2005, and ongoing. The authorized treating physician placed the claimant at maximum medical improvement (MMI) on March 14, 2006 and released her to regular full duty activity with no permanent medical impairment. The claimant requested a Division of Workers’ Compensation independent medical examination (DIME). The DIME physician determined the claimant had not reached MMI, but offered no opinion about the claimant’s activity restrictions. The ALJ determined that the claimant failed to show it more probably true than not that her wage loss from March 15, 2006, ongoing, was proximately caused by her industrial injury. In addition, the ALJ determined that the claimant had resigned on November 4, 2005, knowing she had an umeported injury. The resignation occurred after the claimant’s supervisor had discussed the need for a criminal background check on the claimant’s brother who had been accompanying the claimant to work. The ALJ concluded the claimant was responsible for her termination and should not be entitled to receive TTD benefits after November 4, 2005.
The claimant has not filed a brief in support of her petition to review and, therefore, the effectiveness of our review is limited Ortiz v. Industrial Commission,
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734 P.2d 642 (Colo.App. 1986). However, the petition to review contains three allegations of error.
The claimant first contends that the ALJ erred in determining that the claimant resigned her employment. Sections 8-42-103(l)(g) and 8-42-105(4), C.R.S. 2007 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. 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). 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. 2007. 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 found that the claimant’s supervisor testified that at the same meeting when the issue of the need for a background check on the claimant’s brother was discussed, she accepted the claimant’s resignation. This is amply supported in the notes the supervisor made of the meeting and the supervisor’s testimony. Exhibit J; Fogler Depo. at 6-7, 16, 20, 28. The claimant denied she resigned. However, the ALJ found that the claimant’s testimony regarding her termination was inconsistent and unreliable. As an example, the ALJ noted the claimant testified regarding another person’s work: “And if I had to do that, I would do it for however long I had to do it, but I would not continue doing it.” Harris Depo. at 38. The ALJ found that there was no persuasive evidence showing the claimant’s right upper extremity condition changed or worsened in any way between the time of the claimant’s termination and her first medical appointment where Dr. Kersten imposed work restrictions. Finding of Fact, Conclusions of Law, and Order at 5, ]f 10.
The record therefore provides evidentiary support for the ALJ’s corresponding conclusion that the claimant was responsible for her separation from this employment. There was conflicting evidence in the record. However, the existence in the record of conflicting testimony or of evidence that would support a contrary result does not provide a basis for setting aside the ALJ’s order. See Mountain Meadows Nursing Center v. Industrial Claim Appeals Office, 990 P.2d 1090 (Colo.App. 1999) (the existence of conflicting evidence does not lessen the import of substantial evidence in support of a finding).
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In any event, although the record does contain the deposition of the claimant and the deposition of the claimant’s supervisor, Ms. Fogler, the claimant has failed to provide a transcript of the hearing. Therefore, we must presume that the ALJ’s factual findings are supported by the record. Nova v. Industrial Claim Appeals Office, 754 P.2d 800
(Colo.App. 1988). We perceive no reversible error in the ALJ’s determination that the claimant resigned her employment.
We further note that although the ALJ determined that the claimant was not entitled to TTD benefits after November 4, 2005, the respondents apparently filed a final admission of liability for TTD benefits from November 12, 2005 through March 14, 2006. Exhibit 1. In any event, it does not appear that the respondents sought an overpayment and we make no corresponding determination as to the effect of this determination by the ALJ.
The claimant next contends the ALJ erred in refusing to hear her argument on waiver. However, the absence of a transcript precludes us from determining what arguments, if any, were made on the issue of waiver at the hearing. It is presumed the proceedings were regularly and fairly conducted unless the contrary appears from the record. Wecker v. TBL Excavating, Inc., 908 P.2d 1186 (Colo.App. 1005). In the absence of a transcript, we decline to override the presumption of regularity. Further, the claimant has failed to provide a record sufficient to demonstrate that any error actually occurred. Stephens v. Gary North Air Package Express Services, Inc. W. C. No. 4-492-570 (February 16, 2005).
The claimant finally contends that the ALJ erred in denying her request for temporary total disability benefits. We again disagree.
We have already discussed and upheld the ALJ’s determination that the claimant was responsible for her termination and is not entitled to receive TTD benefits after November 4, 2005 pursuant to the termination statutes. In addition § 8-42-105(3)(c), C.R.S. 2007, specifically mandates the termination of TTD benefits when an attending physician releases a claimant to return to work. Lymburn v. Symbios Logic 952 P.2d 831 (Colo.App. 1997). Here, the ALJ found with record support that Dr. Kersten, an authorized treating physician, placed the claimant at MMI on March 14, 2006 and released her to regular full duty activity with no permanent medical impairment. Exhibit F.
Under § 8-43-301(8) we are precluded from disturbing the ALJ’s order unless the findings of fact are insufficient to permit appellate review, the ALJ has not resolved conflicts in the evidence, the record does not support the findings, the order is not supported by the findings, or the order is not supported by applicable law. Where the
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claimant’s entitlement to benefits is disputed, the claimant has the burden to prove a causal relationship between a work-related injury or disease and the condition for which benefits or compensation are sought Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo.App. 1997). Whether the claimant sustained her burden of proof is a factual question for resolution by the ALJ. City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). The ALJ’s factual determinations must be upheld if supported by substantial evidence and plausible inferences drawn from the record. We have no authority to substitute our judgment for that of the ALJ concerning the credibility of witnesses and we may not reweigh the evidence on appeal. Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo.App. 1993).
Here, we have reviewed the record and the ALJ’s findings of fact and conclusions of law. The ALJ’s findings are sufficient to permit appellate review and the ALJ resolved conflicts in the evidence based upon weighing of the evidence and his credibility determinations. Further, the ALJ’s findings are amply supported by substantial evidence in the record and the findings support the conclusion that the claimant failed to prove entitlement to further benefits and compensation. The ALJ correctly applied the law and did not err in denying benefits. Accordingly, we perceive no basis on which to disturb the ALJ’s order.
IT IS THEREFORE ORDERED that the ALJ’s order issued August 23, 2007 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_____________________________ John D. Baird
_______________________________ Thomas Schrant
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GLORIA HARRIS, 1015 FONTMOREROAD #204, COLO SPGS, CO, 80904 (Claimant), DIOCESE OF COLORADO SPRINGS, Attn: CHRISTIANNA FOGLER, C/O: ST. STEPHENS EPISCOPAL DAY SCOOL, COLO SPGS, CO, (Employer), LIBERTY MUTUAL, Attn: ELIZABETH WILSON/TIFFANY DERICHSWEILER, IRVING, TX, (Insurer).
MCELROY, DEUTSCH, MULVANEY CARPENTER, LLP, Attn: TIFFANY L. SCULLY, ESQ., DENVER, CO, (For Respondents).
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