Opinion
W.C. No. 4-777-948.
September 4, 2009.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Jones (ALJ) dated May 4, 2009 that dismissed his claim for temporary total disability (TTD) benefits. We affirm.
The ALJ's findings of fact are summarized as follows. The claimant worked in maintenance. He entered and exited the business through the use of a pass card that allowed the employer to monitor the claimant's progress to and from the premises. The claimant underwent chemotherapy for cancer in December 2008. The employer warned the claimant on December 15th and 17th that he had to report to his supervisor when he felt ill and left the workplace. However, the employer discharged the claimant on December 29th because on December 23rd he left the workplace midday due to illness without advising his supervisor of his absence, contrary to the employer's previous instruction. The ALJ determined that the claimant was responsible for his termination and denied him TTD benefits.
The claimant asserts on appeal that the record does not support the hearing officer's finding that the claimant left his workplace due to illness without informing his supervisor. We conclude that the ALJ made reasonable inferences from the evidence before her to determine that the claimant was responsible for his separation by failing to comply with the employer's repeated instruction to advise his supervisor before leaving the workplace due to illness.
Sections 8-42-105(4), C.R.S. 2008, and 8-42-103(1)(g), C.R.S. 2008 (referred to as the termination statutes), contain identical language stating that in cases "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." 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). That determination must be based upon an examination of the totality of circumstances. Id. As the ALJ correctly recognized, the burden to show that the claimant was responsible for his discharge is on the respondents. Colorado Compensation Insurance Authority v. Industrial Claim Appeals Office, 18 P.3d 790 (Colo. App. 2000).
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 if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2008; Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo. App. 1995). This standard of review requires us to view the evidence in the light most favorable to the prevailing party, and to accept the ALJ's resolution of conflicts in the evidence as well as plausible inferences which she drew from the evidence. Industrial Commission v. Royal Indemnity Co., 124 Colo. 210, 236 P.2d 293 (1951); Metro Moving Storage Co. v. Gussert, supra. Resolving conflicting inferences which could be drawn from the competing testimony is solely in the ALJ's discretion. Id. This standard of review is deferential and the scope of our review in this regard is "exceedingly narrow." Id. Under this standard of review it is also the ALJ's sole prerogative to evaluate the credibility of the witnesses and the probative value of the evidence. We may not substitute our judgment for that of the ALJ regarding credibility matters unless there is such hard, certain evidence contradicting the ALJ's determination that it would be error as a matter of law. See Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986).
As noted by the claimant, he testified that on the day in question he was absent for the morning due to a doctor's appointment. Tr. at 35. Regarding his use of his pass card to leave the employer's building after returning from the doctor, the claimant explained that he was removing garbage from the building several times. Tr. at 36. The plant manager, in turn, testified that the claimant would not have to notify his supervisor if he went outside to empty trash. Tr. at 47. Thus, the claimant asserts that he was terminated for failing to notify his supervisor that he was leaving the building to empty trash, which was not a ground for dismissal. The ALJ could have made that inference from the record. However, that is not the only reasonable inference available.
For example, the plant manager provided the following additional testimony. He met with the claimant to review several instances of the claimant leaving the facility. The claimant explained he wasn't feeling well and was instructed that if he didn't feel well or had to leave the facility to let his supervisor know. Tr. at 14. The manager knew the claimant was being treated for cancer. Tr. at 16. The claimant was advised during a meeting that if he was not feeling well "or have to leave besides your break and lunch to let your supervisor know that you are leaving." Tr. at 18. The manager further indicated that the claimant was not terminated because he needed to take time off because he wasn't feeling well. Tr. at 40. Instead, he indicated that the employer discharged the claimant solely because he failed to advise a supervisor he was going in and out of the building on December 23rd . Tr. at 18. The claimant left the building multiple times during the day in question after returning from his doctor's appointment. Tr. at 43. The claimant did not inform supervisors that he was leaving the work area. Tr. at 46. The claimant, on the other hand, admitted going in and out of a door six times, but explained it was because he was removing garbage. Tr. at 36-37. The employer's termination paperwork states that the claimant had previously been outside the building because he was not feeling well. The claimant had been warned to notify his supervisor in the future, but on the day in question the claimant had left the building six times without notification to his supervisor. Exhibit F. We cannot say that the ALJ erred by inferring from the record that the claimant left the workplace due to illness without notifying a supervisor.
The ALJ is permitted to draw reasonable inferences from the evidence. Harrison Western Corp. v. Claimants in re Death of Hicks, 185 Colo. 142, 522 P.2d 722 (1974). As noted, because the ALJ's findings support the legal conclusion that the claimant was responsible for the termination of his employment, we must affirm the denial of TTD benefits. The ALJ was not compelled to draw these inferences; however, she weighed the competing evidence and did draw them, and they are plausible ones from the record. Therefore, we may not disturb her factual findings. Moreover, the mere existence in the record of evidence that would support a contrary result does not form a basis for relief on appeal. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo. App. 2002).
IT IS THEREFORE ORDERED that the ALJ's order dated May 4, 2009 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ John D. Baird
______________________________ Thomas Schrant
BRUCE MIDDLETON, AURORA, CO, (Claimant).
BIMBO BAKERIES, Attn: MARY URBAN, DENVER, CO, (Employer).
ESIS, INC., Attn: EVELYN RADMACHER, TAMPA, FL, (Insurer).
FRANKLIN D AZAR ASSOCIATES, Attn: JOHN M. CONNELL, ESQ., AURORA, CO, (For Claimant).
CLIFTON, MUELLER BOVARNICK, PC, Attn: ERICA A WEBER, ESQ., DENVER, CO, (For Respondents).