W.C. No. 4-631-217.Industrial Claim Appeals Office.
September 30, 2005.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Klein (ALJ), which concluded that claimant was at fault for the termination of his employment and therefore not entitled to temporary disability benefits. We affirm.
The claimant’s petition to review the order contains general allegations of error. § 8-43-301-(8), C.R.S. 2005. On review the claimant contends that the order is contrary to the law, the findings of fact are not sufficient to permit appellate review, the findings of fact do not support the order and the findings of fact are not supported by substantial evidence.
The ALJ’s pertinent findings of fact are as follows. On September 26, 2004 claimant sustained a work related injury. The claimant continued working his regular job from September 26, 2004, until the termination of his employment for “no call/no show” violations on October 29, 2004. The claimant acknowledged he was supposed to call in but gave no explanation at the hearing as to why he failed to call in. The claimant was also aware that his failure to follow the employer’s call-in policy on three consecutive days would constitute a voluntary resignation.
The claimant returned to work for a former employer in January of 2005. The ALJ found that claimant’s work-related condition had not worsened since the termination of his employment and any reduction in the claimant’s wages was a direct result of his voluntarily resigning his employment with employer.
First, we note that the respondents have objected to the claimant’s brief in support of the petition to review, arguing that it is untimely. Section 8-43-301(4), C.R.S. 2005, provides that:
When the record upon which a petition to review has been filed is complete, the parties shall be notified in writing. The petitioner shall have twenty days after the date of the certificate of mailing of the notice to file a brief in support of the petition. The opposing parties shall have twenty days after the date of the certificate of mailing of the petitioners’ brief to file briefs in opposition thereto.
A notice of briefing schedule was issued on July 12, 2005, and there is no evidence the claimant requested or was granted an extension of time to file a brief in support of the petition to review. Consequently, the claimant’s brief in support of the petition to review was due no later than August 1, 2005. The claimant’s brief contains a certificate of hand delivery dated August 5, 2005. It follows that the claimant’s August 5, 2005 brief is untimely. Under these circumstances, we have not considered the brief.
We have reviewed the record, however, and perceive no basis for setting aside the ALJ’s order. Under §8-43-301(8), C.R.S. 2005, we are precluded from disturbing the ALJ’s order unless the ALJ’s findings of fact are insufficient to permit appellate review, the ALJ has not resolved conflicts in the evidence, the record does not support the ALJ’s findings, the findings do not support the order, or the order is not supported by the applicable law.
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 Act) the concept of “fault” as used in termination cases before the supreme court’s decision in PDM Molding, Inc. v. Stanberg, 898 P.2d 542
(Colo. 1995). 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., Ellis v. Industrial Claim Appeals Office, Colo. App. No. 03CA1356, April 1, 2004 (not selected for publication). The determination of the fault issue is ordinarily one of fact for resolution by the ALJ. Padilla v. Digital equipment Corp., supra.
The employment records entered into the record along with the testimony of the personnel manager from the employer and the admissions made during his testimony support the ALJ’s finding on the issue of responsibility for claimant’s termination. The record contains a medical report from Dr. Brogmus dated 11/2/04 placing certain physical restrictions on claimant after his termination. However, the claimant testified that he felt back pain after the injury and provided no testimony that his condition has worsened from the time of his termination to the time he saw Dr. Brogumus. The single report from Dr. Brogmus does not establish that the ALJ’s order exceeded the bounds of reason and so there is an absence of an abuse of discretion and we may not disturb the ALJ’s determination that claimant failed to sustained his burden of proving a worsening. Osborne v. Industrial Commission 725 P.2d 63 (Colo.App. 1986) Coates, Reid Waldron v. Vigil, 856 P.2d P.2d 850 (Colo. 1993).
Here, 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). There is substantial, albeit conflicting, evidence to support the ALJ’s finding that the claimant was terminated not because he was unable to do the work but because of his violation of company rules. The ALJ’s findings are supported by substantial evidence in the record and the order on termination is consistent with the applicable law. We perceive no error in the ALJ’s order.
IT IS THEREFORE ORDERED that the ALJ’s order dated April 22, 2005, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________ Curt Kriksciun
____________________ Tom Schrant
Jorge Villa, Evans, CO, Wal-Mart Stores, Inc., Loveland, CO, American Home Assurance, c/o Michael Horton, CMI, Bentonville, AR, Britton Morrell, Esq., Greeley, CO, for Claimant.
Richard A. Bovarnick, Esq., Denver, CO, for Respondents.