Opinion
W.C. No. 4-767-068.
September 15, 2010.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Cannici (ALJ) dated March 29, 2010, that denied temporary total disability benefits (TTD) after April 7, 2009 because the claimant was responsible for her termination from employment. We affirm.
On July 30, 2008 the claimant suffered admitted industrial injuries to her right knee, back, and neck. The claimant returned to modified employment after her accident. On April 7, 2009 the claimant was terminated from employment. The ALJ determined that the respondents had demonstrated that it was more probably true than not that the claimant committed a volitional act or exercised some control over her April 7, 2009 termination from employment. The ALJ found that the claimant precipitated her termination by a volitional act that she would reasonably expect to cause the loss of employment. Consequently, the ALJ found that the claimant was not entitled to receive TTD benefits subsequent to April 7, 2009 because she was responsible for her termination from employment.
The claimant has appealed the decision but has not filed a brief in support of her petition to review and, therefore, the effectiveness of our review is limited. Ortiz v. Industrial Commission, 734 P.2d 642 (Colo. App. 1986). Moreover, the petition to review contains only general allegations of error, derived from § 8-43-301(8) C.R.S.
Additionally, there is no transcript of the hearing although the claimant requested that one be made. Director Chief Judge Azer entered an order dated April 21, 2010 determining that no audio recording for the February 4, 2010 hearing was available. Citing CA.R. 10(c), the Director Chief Judge ordered the claimant to prepare a statement of the evidence, within 15 days from the best available means and serve the statement of the evidence on the respondents who could serve objections or proposed amendments within ten days after service of the statement. It appears that the claimant did not serve any statement of the evidence and on July 13, 2010 an Appeals Specialist entered a briefing schedule.
The respondents filed a brief in opposition to the petition to review. The claimant in her "Reply to Respondents' Brief in Opposition to Review" argues that the absence of a transcript and the inability of the claimant and her attorney to recall from memory the verbatim testimony of two employer witness, Ms. Honeycutt and Mr. Peterson, resulted in a "glaring defect in the record." The claimant notes that the ALJ relied upon the oral testimony of these witnesses in determining that the claimant's termination was the result of a volitional act. The claimant argues that the ALJ's findings are not sufficient to permit appellate review and pursuant to § 8-43-301(8) the ALJ's order should be reversed and the claimant given a hearing de novo. We disagree.
In our opinion the Director Chief Judge, by analogy to the procedure followed in civil appeals, followed a proper course by giving the parties an opportunity to attempt to reconstruct the record. See CA.R. 10 (prescribing methods for reconstructing record on appeal if transcripts are unavailable); Alfaro v. Industrial Claim Appeals Office, 78 P.3d 1147 (Colo. App. 2003). Here, the claimant, although given an opportunity, took no steps toward attempting to reconstruct the record. It is the duty of the appellant to take the necessary steps under CA.R. 10 to provide an adequate record for review, which includes those circumstances in which a stenographic transcript is not available. People v. Conley, 804 P.2d 240 (Colo. App. 1990).
Here, the appealing party has failed to provide us with such a complete record; therefore, we must presume that the ALJ's factual findings are supported by the record. Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo. App. 1988); Moore, v. Old Town Square Properties, Inc., W.C. No. 4-713-589 (October 9, 2008); Haendler v. Forney Industries, W.C. No. 4-615-313 (September 8, 2006); see also Hanna v. Print Expediters 77 P.3d 863 (Colo. App., 2003) (burden is on appellant to provide record justifying reversal, and absent such a record, we presume the regularity of the trial court proceedings).
Sections 8-42-105(4), C.R.S., and 8-42-103(1)(g), C.R.S. (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 her 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.; 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 he 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. Metro Moving Storage Co. v. Gussert, supra. 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).
It appears that the claimant contends that there is no substantial evidence supporting the determination that the claimant was responsible for her termination of employment and therefore not entitled to TTD from April 7, 2009. The ALJ made the following findings of fact relevant to the claimant's termination. On August 22, 2008 the employer conducted a team meeting and announced that there would be higher levels of accountability for the department. At the meeting the employer informed the claimant and a coworker that a professional atmosphere was expected. There would be no more shouting, singing, throwing toys, bickering and vulgarity that had been tolerated in the past. All who attended the meeting agreed that the unprofessional environment had contributed to errors and that changes were necessary. Despite the August 22, 2008 meeting the claimant received an oral warning on August 29, 2008. The claimant acknowledged that she was aware of the problem and would improve her attitude. An August 29, 2008 annual performance review reflected that the claimant had made errors and cost the employer financially and damaged the employer's reputation.
The ALJ made the following findings of fact regarding the testimony of Ms. Honeycutt, the employer's promotional products division manager. Ms. Honeycutt explained that she worked with the claimant for two months regarding the proper documentation of orders. She also e-mailed the claimant with a number of concerns including mistakes, with shipping information, documentation, proofing, billing information and meeting deadlines. Finally during March 2009, the claimant made a series of mistakes regarding the proper entry of order information into her computer system. Ms. Honeycutt explained that the claimant was terminated because she failed to properly follow the employer's processes and procedures.
The ALJ made the following findings of fact regarding the testimony of Mr. Peterson. Mr. Peterson was the director of Human Resources for the employer. Mr. Peterson reiterated that the claimant was terminated because of her failure to follow the employer's processes and procedures. Mr. Peterson testified that the claimant had a history of difficulties following procedures. The ALJ found that although the claimant explained that she was terminated from employment because of her work-related injuries and did not agree with the information in her write-ups, the record revealed that the claimant was terminated for her job performance and inability to follow the employers' procedures.
In our view, the ALJ's findings are sufficient to permit appellate review and the ALJ resolved conflicts in the evidence based upon weighing of the evidence and his credibility determinations. Further, as noted above we must presume that the ALJ's factual findings are supported by the record. Additionally the findings support the conclusion that the claimant was responsible for her termination from employment. The ALJ correctly applied the law and did not err in denying benefits. Accordingly, we perceive no basis on which to disturb the ALJ's order.
IT IS THEREFORE ORDERED that the ALJ's order dated March 29, 2010 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Johff D. Baird
____________________________________ Thomas Schrant
TINA LUCAS, LEESBURG RD, PARKER, CO, (Claimant).
ORALABS, INC., PARKER, CO, (Employer).
PINNACOL ASSURANCE, Attn: HARVEY D FLEWELLING, DENVER, CO, (Insurer).
JANICE M. GREENING, ESQ., DENVER, CO, (For Claimant).
RUEGSEGGER SIMONS SMITH STERN LLC, Attn: DAVID L. SMITH ESQ., DENVER, CO, (For Respondents).