W.C. No. 4-609-915.Industrial Claim Appeals Office.
March 17, 2006.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Harr (ALJ) dated September 14, 2005, that found the claimant was responsible for termination of her employment and therefore denied the claim for temporary total disability benefits (TTD) from March 14, 2004 through March 20, 2005. We affirm.
The claimant worked a head cashier for the employer and sustained an admitted injury to her back on April 11, 2003. The authorized treating physician (ATP) imposed physical activity restrictions on the claimant and the employer honored these work restrictions. The claimant eventually underwent surgery on March 21, 2005, and the respondents agreed to pay TTD benefits from March 20, 2005 and ongoing. However, the claimant had previously been terminated from the employment on March 14, 2004, and the issue of TTD benefits from that date was disputed.
The claimant had reported to the employer that a male customer became upset with her on February 25, 2004. According to the claimant, the employer’s check processing computer would not allow the claimant to cash the customer’s payroll check, and the customer grabbed the check from the claimant’s hand after she told him she could not cash his check. The claimant also reported that the customer grabbed her left hand and pushed on her left shoulder, causing her to bump her elbow on a Lotto machine.
The claimant was terminated following an investigation into this alleged assault. The store director believed the claimant had violated a position of trust by reporting a fictitious assault.
The ALJ found the claimant’s testimony to be inconsistent. The ALJ also found that the employer had a closed circuit camera directed at the customer service desk where the claimant worked, and that the employer’s manager reviewed the video from February 25, but was unable to find any assault. The ALJ was persuaded by the manager’s testimony that the claimant fabricated the story of the assault.
Further, the ALJ found that the claimant was fully able to perform her duties as head cashier within the restrictions given by the ATP, and that the claimant failed to show that her restrictions from her admitted back injury impaired her ability to effectively and properly perform her regular employment with the employer. Finding also that the claimant acted volitionally in fabricating the assault and was responsible for termination of her employment, the ALJ denied and dismissed the claim for temporary total disability from March 14, 2004 through March 20, 2005.
The petition to review contains only general allegations of error, derived from § 8-43-301(8), C.R.S. 2005. 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.
We perceive no basis for disturbing the ALJ’s order. Where the claimant’s entitlement to temporary disability benefits is disputed, the claimant has the burden to prove a causal relationship between a work-related condition or injury and the wage loss for which compensation is sought. PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995). 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 claimant has not filed a brief in support of her petition to review and, therefore, the effectiveness of our review is severely limited. Ortiz v. Industrial Commission, 734 P.2d 642
(Colo.App. 1986). Moreover, the claimant has also failed to provide a transcript of the hearing, and 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).
The ALJ found the claimant was “responsible” for the termination of employment within the meaning of § 8-42-103(1)(g), C.R.S. 2005, and § 8-42-105(4), C.R.S. 2005 (collectively the termination statutes). Consequently, the ALJ denied the claim for temporary disability benefits. Under the termination statutes, a claimant who is responsible for a 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, supra; see also 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. at Ellis v. Industrial Claim Appeals Office, Colo. App. No. 03CA1356, April 1, 2004 (not selected for publication). The determination of the fault issue ordinarily is one of fact for resolution by the ALJ Padilla v. Digital equipment Corp., supra
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). Further, the determination that the claimant acted volitionally to cause her termination is consistent with the ALJ’s findings and the applicable law. Consequently, the ALJ did not err in denying benefits.
IT IS THEREFORE ORDERED that the ALJ’s order dated September 14, 2005, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Dona Halsey
____________________________________ Thomas Schrant
Maria Romayor, Greeley, CO, Nash Finch Company d/b/a Wholesale Food Outlets, St., Greeley, CO, Joseph Lewis, Nash Finch Company, Minneapolis, MN, Carole Langdon, Sedgwick CMS, Greenwood Village, CO, Britton Morrell, Esq., Greeley, CO, (For Claimant).
Brad J. Miller, Esq., Greenwood Village, CO, (For Respondent).