Opinion
W.C. No. 4-603-526.
January 21, 2005.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Friend (ALJ) which denied a claim for temporary total disability (TTD) benefits. The claimant contends the ALJ erred in finding that he was responsible for a termination of employment caused by his failure to produce a valid Social Security number. We affirm.
The ALJ's findings of fact may be summarized as follows. The claimant sustained a compensable injury on September 5, 2003. The claimant was unable to perform his usual duties but remained employed under restrictions.
In November 2003 the employer's outside payroll firm requested the employer to verify all of its employees' Social Security numbers. The claimant provided a number which could not be verified by the Social Security Administration. On December 30, 2003, the employer suspended the claimant and gave him until January 15, 2003, to obtain a valid Social Security number. The claimant failed to comply and was terminated. It was stipulated the claimant does not have a valid Social Security number, apparently because, as he testified, he does not have legal authority to work in the United States. (Tr. P. 34).
The ALJ concluded the claimant was terminated because he failed to obtain or take any steps to procure a valid Social Security number. Under these circumstances the ALJ found the claimant acted volitionally or exercised some degree of control over the circumstances leading to the termination, and therefore, is responsible for the termination within the meaning of § 8-42-103(1)(g), C.R.S. 2004, and § 8-42-105(4), C.R.S. 2004 (termination statutes). Consequently, the ALJ denied the claim for TTD benefits after January 15, 2004.
On review, the claimant contends he did not engage in any act which could be considered "volitional" for purposes of the termination statutes. He argues that he cannot be considered "at fault" for being born in Mexico. He also argues that the ALJ's order is inconsistent with the holding in Champion Auto Body v. Industrial Claim Appeals Office, 950 P.2d 671 (Colo.App. 1997). We disagree with these arguments.
For purposes of the termination statutes a claimant is "responsible" for termination from employment if the claimant engages in a volitional act or, in light of the totality of the circumstances, exercises some degree of control over the circumstances leading to the separation. See Colorado Springs Disposal v. Industrial Claim Appeals Office, 58 P.3d 1061 (Colo.App. 2002); Padilla v. Digital Equipment Corp., 902 P.2d 414 (Colo.App. 1994); Ellis v. All American Home of Colorado, Inc., W.C. No. 4-544-396 (June 26, 1993), aff'd. Ellis v. Industrial Claim Appeals Office, (Colo.App. No. 03CA1356, April 1, 2004) (not selected for publication). We have previously held that providing false authorization for work is a "volitional act" for purposes of the termination statutes. Barron-Tapia v. Swift Foods Co., W.C. No. 4-597-844 (December 8, 2004); Godoy v. A1 Aurora Relocation Services, W.C. No. 4-506-060 (December 4, 2002); Gutierrez v. Exempla Healthcare, Inc., W.C. No. 4-495-227 (June 24, 2002). The rationale for these decisions is that "undocumented workers should not enjoy a greater right to temporary benefits than all other workers who are terminated because they misrepresent some necessary qualification to the employer at the time of hiring." Godoy v. A1 Aurora Relocation Services, supra; cf. Del Taco v. Workers' Compensation Appeals Board, 79 Cal. App. 4th 1437, 94 Cal. Rptr. 2d 825 (2000). And, legal work authorization is a necessary qualification because employers may not continue to employ workers whom they know to be unauthorized. Champion Auto Body v. Industrial Claim Appeals Office, supra.
Here, the import of the ALJ's findings is the claimant provided false documentation concerning his eligibility for employment. Further the claimant was responsible for the separation because the claimant could not provide the requisite work authority and the employer could not retain the claimant without the documentation. Thus, this is not a case where the claimant was discharged for "being born in Mexico," as the claimant alleges. Rather, there is substantial evidence the claimant engaged in a volitional act which was the providing of false work authorization and the inability to rectify the situation. Thus, the order must be upheld. Section 8-43-301(8), C.R.S. 2004.
The claimant's argument notwithstanding, this result is not contrary to Champion Auto Body v. Industrial Claim Appeals Office, supra. Champion Auto Body was decided before the termination statutes were enacted, and was governed by principles discussed in PDM Molding, Inc., v. Stanberg, 898 P.2d 542 (Colo. 1995). In the Champion case the ALJ found the claimant's wage loss was "not solely the result of his work status," but was also partially attributable to the injury. Thus, under PDM Molding, the claimant in Champion was entitled to temporary benefits. However, Champion Auto Body in no way holds or implies that a claimant's "work status" may not be considered when evaluating the cause of post-injury wage loss. Neither does that case suggest that misleading the employer concerning eligibility for employment cannot be considered a form of volitional conduct for purposes of the termination statutes. Godoy v. A1 Aurora Relocation Services, supra.
Insofar as the claimant makes other arguments, we find them to be without merit.
IT IS THEREFORE ORDERED that the ALJ's order dated June 10, 2004, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_________________ David Cain
_________________ Kathy E. Dean
Carlos Enriquez, Colorado Springs, CO, Robin Mercier, Oglebay Norton Company, LP, Colorado Springs, CO, Insurance Company of the State of Pennsylvania, c/o Dawn Chambers, AIG Claim, Services, Inc., Shawnee Mission, KS, William A. Alexander, Jr., Esq., Colorado Springs, CO, (For Claimant).
Matthew C. Hailey, Esq., Denver, CO, (For Respondents).