Opinion
W.C. No. 4-500-317.
November 22, 2004.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Harr (ALJ) which denied the request for temporary total disability (TTD) benefits between December 3, 2002 and October 6, 2003. The claimant argues the ALJ erred in determining the claimant was responsible for a termination of employment and is thus barred from receiving TTD under § 8-43-105(4), C.R.S. 2004. We affirm.
The ALJ's pertinent findings may be summarized as follows. The claimant began working for the respondent employer on August 24, 1993, under the name Irma Franco Cruz, and provided identification documents that she had purchased, including a false social security number. The Social Security Administration (SSA) mailed a letter to the claimant and the employer on July 10, 1995, that stated the claimant's name and social security number failed to agree with SSA's information. The employer eventually terminated the claimant on July 7, 1999, when it could not verify claimant's identity and social security number.
The claimant then bought new documents showing her identity as Ma del Rosario (Maria) Hernandez with a different social security number, and reapplied for employment with the respondent employer. The claimant began working for the employer under her new name on July 19, 1999, and sustained an admitted industrial injury on February 16, 2001. As a result of the injury, the claimant went to the hospital for emergency treatment, where she represented herself as Irma Franco and used another social security number. After the hospital contacted the employer about billing information for Irma Franco, the employer confronted the claimant about the two identities. The claimant admitted she was not Maria Hernandez, and the employer terminated her employment on April 9, 2001.
The ALJ determined the claimant's intentional misrepresentation of her identity in order to obtain this employment was a volitional act, which the claimant should reasonably have expected would result in her termination because the employer had previously terminated her for providing false documentation. Therefore, the ALJ denied the request for TTD benefits in connection with the claimant's subsequent wage loss.
On appeal, the claimant argues the evidence does not support the determination that she engaged in volitional conduct which was the cause of the termination. Specifically, the claimant argues that the ALJ failed to address portions of claimant's testimony and documentary evidence that indicate the employer was aware of and condoned, either explicitly or implicitly, the claimant's use of a false identity. We perceive no error.
Section 8-42-103(1)(g), and identical language in § 8-42-105(4), C.R.S. 2004 [the termination statutes], 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." The ALJ must determine whether the claimant engaged in volitional conduct which was the cause of the termination. Conduct is volitional if the claimant exercised some degree of control over the circumstances leading to the termination in light of the totality of the circumstances. See Longmont Toyota, Inc. v. Industrial Claim Appeals Office, 85 P.3d 548 (Colo.App. 2003), cert. granted March 8, 2004; Colorado Springs Disposal v. Industrial Claim Appeals Office, 58 P.3d 1061 (Colo.App. 2002); Cura v. Standard Process West, Inc., W.C. No. 4-476-826 (May 17, 2002).
Because the issue is factual in nature, we must uphold the ALJ's pertinent findings if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2004. This standard of review requires us to view the evidence in a light most favorable to the prevailing party, and defer to the ALJ's resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003). To the extent the testimony of a witness contains internal inconsistencies, the ALJ may resolve the problem by crediting part or none of the testimony. See Johnson v. Industrial Claim Appeals Office, 973 P.2d 624 (Colo.App. 1997) (ALJ's fact-finding authority extends to resolution of inconsistencies in testimony of a witness). Furthermore, the ALJ is not required to credit the claimant's testimony even if unrefuted. Levy v. Everson Plumbing Co., Inc., 171 Colo. 468, 468 P.2d 34 (1970). Finally, we note the ALJ need not make findings of fact concerning evidence which is not found to be persuasive or dispositive of the issues in the case, and evidence not specifically addressed is presumed to have been rejected. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000).
Here, the ALJ's pertinent findings are supported by substantial, albeit conflicting, evidence in the record. It is undisputed the claimant purchased false identification documents, including social security cards and alien registration cards, and used those documents to obtain employment with the employer on two occasions. The ALJ found the claimant had previously been terminated by the employer for using false identification, and that the claimant engaged in a volitional decision to mislead the employer by intentionally providing another set of false identification in order to obtain employment. Indeed, the claimant testified she purchased the Maria Hernandez social security card with the intention of using it to obtain employment with the employer. (Tr. p. 32). Further, the ALJ's findings support the conclusion the claimant was responsible for the termination of her employment because of these circumstances. See Godoy v. 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) (providing false documentation to the employer in order to obtain employment was a volitional act).
However, the claimant contends this case is legally and factually distinguishable from Gutierrez because the employer in this case was aware the claimant was using a different name when she was hired, and therefore it was reasonable for the claimant to believe she would not be fired if the employer discovered her documentation was false. We are not persuaded.
In Gutierrez it was unnecessary to address the question of "whether a claimant would be considered `responsible' for the termination if the employer knew, or reasonably should have known, the claimant's true status at the time of hiring." Here, the ALJ expressly found the evidence did not show that employer conspired with the claimant to encourage her to misrepresent her identity, and the ALJ rejected the claimant's contention that the employer condoned the misrepresentation. (Finding of Fact 8; Conclusions of Law p. 4). The ALJ's finding is supported by evidence the employer terminated the claimant's employment in July after learning of the misrepresentation and again when the employer was contacted by the hospital with information the claimant continued to misrepresent her identity. While it is true that some evidence in the record could support a different result, the mere existence of conflicting evidence affords no basis for relief on appeal. Wilson v. Industrial Claim Appeals Office, supra. IT IS THEREFORE ORDERED that the ALJ's order dated July 8, 2004, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________ Kathy E. Dean
___________________ Bill Whitacre
Maria Hernandez, Loveland, CO, Fibrotek/VF Corp., Longmont, CO, Insurance Company of the State of Pennsylvania, c/o Amy Gerelick, Gallagher Bassett Services, Inc., Englewood, CO, Paul A. Motz, Esq., Greeley, CO, (For Claimant).
Kathleen Mowry Fairbanks, Esq., Denver, CO, (For Respondents).