W.C. No. 4-520-733Industrial Claim Appeals Office.
April 14, 2003
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Jones (ALJ) which determined the claimant was responsible for a termination from employment and denied temporary disability benefits pursuant to § 8-42-103(1)(g), C.R.S. 2002, and § 8-42- 105(4), C.R.S. 2002 (collectively the termination statutes). We affirm.
The claimant, who was employed as a heavy laborer, sustained a compensable injury to his left hand and thumb on October 25, 2001. Thereafter, the claimant was medically restricted from using his left hand.
On October 29, 2001, the claimant returned to work and was assigned to operate a small street sweeper. On October 30, 1991, the claimant was assigned to use a push broom. The claimant complained to his attorney that these activities violated the restriction against use of the left hand.
The parties presented conflicting evidence concerning the course of events after October 30. The ALJ credited the testimony of the employer’s witnesses and discredited the claimant’s testimony. Therefore, the ALJ found the claimant reported for work on October 31, but told his supervisor he had a doctor’s appointment and left early. However, there was no medical evidence the claimant went to the doctor on October 31. On November 1, 2001, the claimant’s supervisor advised the claimant the employer had one-handed work which would require the claimant to dust equipment with a foxtail broom. Nevertheless, the claimant failed to appear for work. On November 2, 2001, the claimant was directed to come to work after a scheduled doctor’s appointment. However, the claimant failed to appear and was terminated for attendance problems.
Under these circumstances, the ALJ concluded the claimant was responsible for the loss of the post-injury employment within the meaning of the termination statutes. Consequently, the ALJ denied the claim for temporary disability benefits.
On review, the claimant contends that the ALJ’s findings of fact, particularly those pertinent to credibility of the claimant and the employer’s witnesses, are not supported by substantial evidence. The claimant also asserts the ALJ misapplied the law when applying the termination statutes to the facts. We find no error.
The termination statutes provide that if a temporarily disabled employee is “responsible for termination of employment, the resulting wage loss shall not 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 the term “responsible” appears to introduce the concept of “fault” as it existed in the cases prior to the Supreme Court’s ruling in PDM Molding Inc. v. Stanberg, 898 P.2d 542
(Colo. 1995). Consequently, responsibility for termination 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). Under most circumstances, the existence of fault is a question of fact for the ALJ Pace v. Commercial Design Engineering, W.C. No. 4-451-277 (May 15, 2001).
Because the issue is factual in nature, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2002. This standard of review 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). To the extent the testimony of a particular witness contains internal inconsistencies, the ALJ may resolve them by crediting part or none of the testimony. Johnson v. Industrial Claim Appeals Office, 973 P.2d 624
(Colo.App. 1997).
The claimant argues the ALJ left a false impression by finding the claimant left work on October 31 to attend a doctor’s appointment, but did not do so. The claimant relies on evidence that he underwent an X-ray the following day, November 1. However, the record fully supports the ALJ’s finding the claimant left work on October 31 under false pretenses. As the ALJ found, there is no evidence the claimant had a doctor’s appointment on October 31, nor is there evidence the claimant needed to leave early in preparation for the appointment scheduled for the next day.
The claimant also contends the evidence does not support the ALJ’s finding that the employer made work available which was within the claimant’s restriction. However, as we understand the ALJ’s findings, the ALJ determined the street sweeper and push broom jobs were outside the claimant’s restrictions. (Findings of Fact 4 and 6). However, the ALJ found the employer then offered the claimant work using the one-handed foxtail broom, but the claimant failed to report and perform this work. (Finding of Fact 7-9). These findings are fully supported by the testimony of the employer’s witnesses. (Tr. Pp. 37, 43, 45-46, 49-50, 57-58). The fact that other findings were possible had the ALJ credited the claimant’s testimony is immaterial on review.
In addition, the fact that the ALJ’s order incorrectly states the name of the attorney which represented the claimant at the hearing is nothing more than harmless error.
The claimant next contends the ALJ erred in finding the claimant was terminated because of absenteeism. In support, the claimant cites a document on which the employer recorded that the claimant was separated by “mutual agreement.” However, other evidence, including the testimony of the employer’s witnesses and claimant’s Exhibit 4c, supports the ALJ’s finding. Thus, the ALJ implicitly rejected any inference that the claimant was separated by “mutual agreement,” and the ALJ’s finding is supported by substantial, albeit conflicting, evidence.
The claimant next contends the ALJ’s application of the termination statutes is contrary to law. The claimant argues he was not responsible for the termination because the jobs offered by the employer were not “approved by the physician, nor even believed to be within his restrictions by the employer.” (Brief at P. 6). We find no error.
As noted, the test for fault is whether the claimant acted volitionally or exercised some degree of control over the circumstances leading to the discharge. It is true that we have previously held that a claimant is not at fault for a termination if the claimant is physically unable to perform the duties of employment offered by the employer. Eg. Windom v. Lawrence Construction Co., W.C. No. 4-487-966 (November 1, 2002).
Here, there was substantial evidence the claimant acted volitionally. Although the initial duties provided by the employer may have exceeded the claimant’s restriction, the employer eventually provided one-handed employment using the foxtail brush. The ALJ reasonably found this duty was within the restriction imposed by the treating physician. (Claimant’s Exhibit 3O). Further, the evidence supports the ALJ’s conclusion that, for his own reasons, the claimant elected not to perform the foxtail brush job, and that decision led to his termination. There is no statutory requirement that a treating physician approve each individual duty offered by the employer as a prerequisite to finding fault if the claimant refuses to perform the job.
IT IS THEREFORE ORDERED that the ALJ’s order dated April 30, 2002, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Kathy E. Dean
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, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to §8-43-301(10) and § 8-43-307, C.R.S. 2002. 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 Street, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed April 14, 2003 to the following parties:
Antonio L. Mellon, 120 2nd St., Ft. Collins, CO 80524
Holnam, Inc., P. O. Box 1548, LaPorte, CO 80535
Pacific Employers’ Insurance, c/o Wes Johnson, ACE/ESIS, Inc., P. O. Box 911, Portland, OR 97207
Gina Gradecki, Esq. and Bob Ring, Esq., 2550 Stover St., Bldg. C, Ft. Collins, CO 80525 (For Claimant)
Kathleen Mowry Fairbanks, Esq., 999 18th St., #1600, Denver, CO 80202 (For Respondents)
By: A. Hurtado