W.C. No. 4-770-910.Industrial Claim Appeals Office.
September 21, 2009.
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FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Cannici (ALJ) dated May 6, 2009, that determined the respondents had failed to establish that the claimant was responsible for her termination from employment and awarded temporary disability benefits. We affirm.
The claimant suffered an admitted industrial injury to her lower back and hip on February 4, 2008. The claimant was placed on modified duty. The claimant missed several scheduled work shifts after she returned to work on modified duty. The employer followed a four-step disciplinary procedure and terminated the claimant on October 25, 2008. The claimant’s treating physicians imposed work restrictions that began shortly after her industrial injury and continued through her date of her termination. The ALJ found that although the claimant missed several scheduled work shifts the pain associated with her back injury caused many of the absences. The ALJ determined that the respondents had failed to establish that the claimant was responsible for her termination from employment. The ALJ awarded temporary total disability (TTD) benefits for the period October 25, 2008 until terminated by statute.
The respondents contend that the ALJ’s finding that the claimant was not responsible for the termination of her employment was not supported by substantial evidence in the record. We disagree.
The termination statutes generally bar a claimant from receiving temporary total disability benefits where she is at fault for the termination of her employment. Sections 8-42-105(4) and 8-42-103(1)(g) contain identical language stating that in cases “where it
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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.” In Colorado Springs Disposal v. Industrial Claim Appeals Office, 58 P.3d 1061 (Colo. App. 2002), the court held that the term “responsible” reintroduced into the Workers’ Compensation Act the concept of “fault” applicable prior to the decision in PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995). Hence the concept of “fault” as it is used in the unemployment insurance context is instructive for purposes of the termination statutes. In that context “fault” requires that the claimant must have performed some volitional act or exercised a degree of control over the circumstances resulting in the termination. Padilla v. Digital Equipment Corp., 902 P.2d 414 (Colo. App. 1995) opinion after remand 908 P.2d 1185 (Colo. App. 1985). An individual acts volitionally if she is able to exercise some degree of control in the circumstances which caused the separation. Gonzales v. Industrial Commission, 740 P.2d 999 (Colo. 1987); Velo v. Employment Solutions Personnel, 988 P.2d 1139 (Colo. App. 1998). That determination must be based upon an examination of the totality of circumstances. Id.
The question whether the claimant acted volitionally or exercised a degree of control over the circumstances of the termination is ordinarily one of fact for the ALJ. Knepfler v. Kenton Manor, W.C. No. 4-557-781 (March 17, 2004). Accordingly, we must uphold the ALJ’s findings in this regard if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2009; City of Durango v. Dunagan, 939 P.2d 496 (Colo. App. 1997). This standard of review is narrow and requires us to view the evidence in the light most favorable to the prevailing party. 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).
The termination statutes provide an affirmative defense to a claim for TTD and the respondents bore the burden of proof to establish their applicability. Witherspoon v. Metropolitan Club
W. C. No. 4-509-612 (December 16, 2004). Here the ALJ found that a small portion of the claimant’s absences were related to non-work-related medical conditions or personal matters. The ALJ found that the primary reasons for the claimant’s absences involved her back injury and therefore concluded that she did not exercise control over her termination under the totality of the circumstances. Because the claimant was terminated for excessive absenteeism, the ALJ found that it was unclear whether the reasons for the termination included medical appointments and pain that were related to her industrial injury. The ALJ determined that the respondents had failed to establish that the claimant committed a volitional act or exercised some control over her termination under the totality of the circumstances.
The record included the following evidence. The claimant testified that she was terminated because of too many absences. Tr. 15. The claimant also testified that some
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of the work she missed between the time of her accident and her termination resulted from her work injury. Tr. 18. The claimant testified that on July 11, 2008 she underwent an injection and was forced to miss a couple of days from work. Tr. 17-18. The records of Dr. McCeney also confirm that on July 11, 2008 the claimant underwent an epidural steroid injection and that more conservative management measurers were failing. Exhibit 2, at 14. The claimant testified that on the day before her termination she received an injection from a physician for her work-related condition. Tr. 15. The claimant testified that she was not able to work on October 25, 2008 because she was in pain. Tr. 16. The personnel manager for the employer agreed that some of the claimant’s absences could have been related to her work injury. Tr. 61. The medical record confirms that the claimant underwent an epidural steroid injection on October 24, 2008 and at that time the claimant was doing “100 percent worse.” Exhibit 3 at 23. The ALJ found that the respondents failed to establish by a preponderance of the evidence that the claimant was responsible for her termination from employment.
The respondents point to evidence that the claimant had accrued a large number of absences some of which were unapproved incidents of tardiness. The personnel manger testified that if an injured worker misses time from a regularly scheduled shift to attend a medical appointment, that would not be counted as an unapproved tardy or an unapproved absence. The respondents argue that the claimant’s work-related absences were not counted as unapproved absences.
However, we must defer to the ALJ’s credibility determinations, his resolution of conflicts in the evidence, and his assessment of the sufficiency and probative weight of the evidence. Arenas v. Industrial Claim Appeals Office, 8 P.3d. 558 (Colo. App. 2000) Rockwell International v. Turnbull, 802 P.2d 1182 (Colo. App. 1990). Although here the ALJ might have reached a different conclusion we may not substitute our judgment by reweighing the evidence in an attempt to reach inferences different from those the ALJ drew from the evidence. See Johnson v. Indus. Claim Appeals Office, 973 P.2d 624, 626 (Colo. App. 1997).
IT IS THEREFORE ORDERED that the ALJ’s order dated May 6, 2009 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Curt Kriksciun
______________________________ Thomas Schrant
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MARTHA MORALES, SALLE, CO, (Claimant).
WAL MART STORES, INC., Attn: JOHNNIE SCHOMMER, GREELEY, CO, (Employer).
AMERICAN HOME ASSURANCE, Attn: SHIRLEY KINTNER, C/O: CMI — CLAIM NO. C8210371, BENTONVILE, AR, (Insurer).
KATHERINE E ALLEN, PC, Attn: KATHERINE E ALLEN, ESQ., GREELEY, CO, (For Claimant).
CLIFTON, MUELLER BOVARNICK, PC, Attn: M FRANCES MCCRACKEN, ESQ., DENVER, CO, (For Respondents).