W.C. No. 4-526-849.Industrial Claim Appeals Office.
May 26, 2004.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Harr (ALJ) which found the claimant was responsible for a termination from employment and denied the claim for temporary total disability after February 21, 2002. We affirm.
Crediting the testimony of the claimant’s two supervisors, the ALJ found that on February 21 the claimant refused to perform modified employment within his restrictions and walked off the job. Under these circumstances the ALJ concluded the claimant was “responsible” for the termination within the meaning of §8-42-103(1)(g), C.R.S. 2003, and § 8-42-105(4), C.R.S. (termination statutes).
The claimant filed a timely petition to review citing general allegations of error concerning the sufficiency of the evidence and the correctness of the ALJ’s legal conclusions. The claimant did not file a brief in support of the petition to review. Consequently, the effectiveness of our review is limited.
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 attributed to the on-the-job injury.” The concept of responsibility reintroduces the principle of “fault” as it was used in termination cases prior to PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo.App. 1995). Longmont Toyota, Inc. v. Industrial Claim Appeals Office, 85 P.3d 548, 550 (Colo.App. 2003), cert. granted, 03SC450 (March 8, 2004). Hence, the issue is whether the claimant engaged in volitional conduct which was the cause of the termination. Conduct is volitional if the claimant exercised some degree of control over the circumstances leading to the termination in light of the totality of the circumstances. See Padilla v. Digital Equipment Corp., 902 P.2d 414 (Colo.App. 1994), vacated, 908 P.2d 1185 (Colo. 1995).
The question of whether the respondents have proven the claimant was responsible is ordinarily one of fact for determination by the ALJ. Aguilar v. Matrix Logistic, Inc.,
W.C. No. 4-473-075 (December 5, 2002). Consequently, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2003. This standard of review requires us to defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003).
Here, the ALJ recognized the correct legal standard. Further, the ALJ resolved conflicts in the evidence and decided to credit the testimony of the claimant’s supervisors over that of the claimant. We may not interfere with this credibility determination.
We do note that pages 37 to 39 of the transcript are missing. Although this deletion appears to include some important testimony of witness Cardenas, the substance of that testimony is confirmed and corroborated by other evidence in the record. (Tr. Pp. 53, 72). Thus, in the absence of any specific allegation that the transcript is inadequate, we conclude it is sufficient to support appellate review. See Goodwill Industries v. Industrial Claim Appeals Office, 862 P.2d 1042, 1046 (Colo.App. 1993).
Further the ALJ’s findings support the conclusion the claimant was responsible for the termination of employment. Consequently, we have no basis to disturb the ALJ’s denial of temporary disability benefits.
IT IS THEREFORE ORDERED that the ALJ’s order dated May 19, 2003, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
David Cain
Kathy E. Dean
Gregorio Orozco, Aurora, CO, Academy Roofing, Inc., Aurora, CO, Legal Department, Pinnacol Assurance — Interagency Mail Douglas P. Ruegsegger, Esq. and Michele Stark Carey, Esq., Denver, CO, (For Respondents).