W.C. No. 4-449-506Industrial Claim Appeals Office.
September 11, 2001
FINAL ORDER
The respondent seeks review of an order of Administrative Law Judge Friend (ALJ) which awarded temporary total disability benefits commencing February 29, 2000. We affirm.
On December 29, 1999, the claimant suffered a work-related injury while employed as a Property Technician for the Denver Police Department (DPD). At the time of the injury, the claimant was a probationary employee. The respondent admitted liability for temporary disability benefits.
The ALJ found the claimant was medically released to modified employment on February 28, 2000. When the claimant returned to work on February 29, the employer terminated her employment on grounds she falsified her employment application and mishandled sensitive evidence. The employer believed the claimant lied when she answered “No” in response to an employment application question of whether she had “ever been fired or asked to resign during the past five years.” At hearing, the employer also alleged the claimant was fired for requesting that the employer deny the availability of modified work on February 28, so that her temporary disability benefits would continue until February 29.
The respondent terminated temporary disability benefits effective February 28 on grounds that the claimant was “responsible” for the termination of her employment and thus, was barred from receiving further temporary disability benefits under § 8-42-103(1)(g) and §8-42-105(4), C.R.S. 2000.
The ALJ was not persuaded the claimant was fired for mishandling evidence. Rather, the ALJ found the claimant was fired because the employer believed the claimant had submitted a false employment application and had asked the employer to lie about the availability of work on February 28. However, the ALJ found the claimant did not ask the employer to lie about the availability of employment and did not lie on the employment application. Therefore, the ALJ determined the claimant was not responsible for the termination of her employment and that the respondent remained liable for temporary disability benefits attributable to the claimant’s wage loss from the injury after February 28.
On appeal, the respondent does not dispute the ALJ’s finding that the claimant did not request the DPD lie about the availability of modified work. Therefore, we do not consider whether the ALJ properly resolved that issue.
Instead, the respondent contests the ALJ’s findings that the claimant did not lie about having been terminated from her prior employment with the Fort Collins Police Department (FCPD) and that mishandling evidence was not a cause of the termination. The respondent contends the claimant was responsible for the employment termination because she demonstrated “untruthfulness” and “lack of professionalism” during her probationary employment at DPD.
Initially, we note that the respondent’s Designation of Record includes the “complete Division of Workers’ Compensation file.” The record transmitted to us for review apparently does not include the complete Division of Workers’ Compensation file. However, our review is limited to the evidentiary record before the ALJ, and there is no evidence in the record which tends to suggest the respondent requested the ALJ consider the entire Division of Workers’ Compensation file as part of the evidentiary record for the hearing. See City of Boulder v. Dinsmore, 902 P.2d 925 (Colo.App. 1995); Rules of Procedure, Part VIII(A)(7), 7 Code Colo. Reg. 1101-3 at 22. Consequently, we have not considered the Division of Workers’ Compensation file.
To receive temporary disability benefits, a claimant must establish a causal connection between the industrial disability and the loss of wages. Once the claimant has established her entitlement to temporary disability benefits, temporary disability benefits must continue until the occurrence of one of the events listed in § 8-42-103(a)-(d), C.R.S. 2000. However, § 8-42-105(4) provides that “where it is determined that a temporarily disabled employee is responsible for termination of employment, the resulting wage loss shall not be attributable to the on-the-job injury.
We have previously concluded that § 8-42-105(4) is applicable where the claimant is determined to be responsible for the loss of post-injury modified employment. Martinez v. Colorado Springs Disposal,
W.C. No. 4-437-497 (March 7, 2001). We have also held that the statutory term “responsible” is analogous to the concept of “fault” in unemployment insurance cases. The concept of “fault” requires, at a minimum, a volitional act. See Gonzales v. Industrial Commission, 740 P.2d 999
(Colo. 1987). Accordingly, the claimant is not “responsible” for the loss of employment unless the claimant performed some volitional act or exercised some control over the circumstances resulting in the discharge. Gehrig v. Danella Construction, W.C. No. 4-470-914 (August 1, 2001). The mere fact that an employer discharges the claimant in accordance with the employer’s policy does not establish that the claimant acted volitionally or exercised control over the circumstances of the termination. See Gonzales v. Industrial Commission, supra; Pace v. Commercial Design Engineering, W.C. No. 4-451-277 (May 15, 2001).
The question of whether the claimant acted volitionally is a question of fact for resolution by the ALJ. See Gonzales v. Industrial Commission, supra. 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. 2000. This standard requires us to review the evidence in the light most favorable to the prevailing party, and accept the ALJ’s resolution of conflicts in the evidence, as well as the plausible inferences which he drew from the evidence. Industrial Commission v. Royal Indemnity Co., 124 Colo. 210, 236 P.2d 293 (1951) Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
Further, we may not disturb the ALJ’s credibility determinations unless there is hard, certain evidence directly contrary to the testimony which the ALJ found credible. See Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986); Eisnach v. Industrial Commission, 633 P.2d 502
(Colo.App. 1981). Testimony which is contradicted is not incredible as a matter of law. People v. Ramirez, ___ P.3d __(Colo.App. No. 99CA1973, February 15, 2001).
Here, the record contains highly conflicting evidence. Within his sole prerogative, the ALJ resolved the conflict in favor of the claimant by crediting the claimant’s testimony and relying on the terms of a written Separation Agreement between the claimant and the FCPD. The respondent’s arguments notwithstanding, there is substantial support to support the ALJ’s pertinent findings.
The claimant testified that she had “difficulties” with the FCPD prior to the date she “voluntarily” resigned and, that she could have pursued her employment conflicts through several hearings had she not voluntarily resigned. (Tr. p. 12). She also admitted the FCPD had “recommended” the termination of her employment. (Tr. p. 16). However, she denied she was fired or asked to resign from the FCPD. She also denied she was required to enter into the written Separation Agreement with the FCPD. (Tr. pp. 13, 28).
Contrary to the respondent’s contention, the ALJ did not find the Separation Agreement was “binding” on the respondent. The ALJ merely found the Separation Agreement persuasive evidence concerning the circumstances of the claimant’s termination from the FCPD.
Furthermore, nothing in the Separation Agreement indicates the claimant was fired or asked to resign. To the contrary, the Separation Agreement states the claimant sought to “voluntarily” resign and indicates the Agreement was designed as a compromise to “resolve and settle any and all disputes” the claimant had or may have had again the FCPD. In fact, Part 5 of the Agreement states that it is not to be “construed as an admission of any wrongful conduct or violation of any law by either party.”
In contrast, the testimony of Chief Reed from the DPD was internally inconsistent. DPD Chief Reed stated that she called the FCPD prior to hiring the claimant and that the FCPD employee with whom she spoke gave the claimant a positive recommendation. (Tr. p. 40). However, Chief Reed stated that when she contacted the FCPD in February 2000, the same employee said the claimant was forced to resign from the FCPD and denied ever giving the claimant a positive job recommendation. (Tr. p. 74). Under these circumstances, we cannot say the ALJ erred in rejecting Chief Reed’s hearsay testimony on the issue.
Similarly, the evidence is subject to conflicting inferences concerning the cause of the claimant’s termination from the DPD. The claimant testified the incident involving the mishandling of evidence occurred on January 18, 2000, and was neither an ongoing problem nor mentioned again prior to her employment termination. (Tr. pp. 25, 36). Captain Reed testified that the incident was documented through a “notation” in the claimant’s personnel record followed by a discussion about the importance of handling sensitive evidence. (Tr. p. 58). However, Chief Reed admitted there was no other disciplinary action and the claimant was not advised her employment was in jeopardy. (Tr. p. 59). Under these circumstances, the ALJ reasonably inferred that the incident was not the precipitating factor in the employment termination Cf. Eckart v. Industrial Claim Appeals Office, 775 P.2d 97 (Colo.App. 1989) (the cause of the separation is a factual determination).
Because the claimant was restricted to modified employment as of February 28, 2000, and the ALJ found the claimant was not responsible for the termination, the ALJ correctly determined that the respondent’s liability for temporary disability benefits did not terminate. Consequently, the ALJ did not err in ordering the respondent’s to reinstate temporary disability benefits effective February 29, 2000.
IT IS THEREFORE ORDERED that the ALJ’s order dated January 5, 2001 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ Kathy E. Dean
________________________________ Dona Halsey
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. 2000. 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, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed September 11, 2001 to the following parties:
Shelly Shaffer, 13500 S.W. 1st St., #U202, Pembroke Pines, FL 33027-1636
City and County of Denver, 1675 Broadway, #1600, Denver, CO 80202
Cathleen McEwen, Esq., P. O. Box 885, Loveland, CO 80539-0885 (For Claimant)
Wayne E. Vaden, Esq., 303 E. 17th Ave., #1100, Denver, CO 80203 (For Respondent)
BY: A. Pendroy