Opinion
W.C. No. 4-826-839.
April 27, 2011.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Edwin L. Felter, Jr. (ALT) dated November 22, 2010 that denied his claim for temporary disability benefits. We affirm.
This matter proceeded to hearing to determine the claimant's entitlement to temporary, total disability, benefits and whether the claimant was responsible for his termination from employment. The ALJ determined that the claimant was temporarily disabled, but not entitled to benefits because he was responsible for his termination from employment.
Several of the ALJ's findings are summarized as follows. The claimant's first Ml day of work was May 10, 2010 and the claimant attended the weekly safety meeting that day. The claimant injured his back on May 13, 2010, while parrying roofing materials at work. The claimant reported the injury to the employer and the employer gave the claimant light duty work on May 13 and May 14, 2010. The claimant has not worked since May 15, 2010, a Saturday, and ended work early that day because he was unable to carry bundles of materials due to back pain. The owner of the employer advised the claimant to contact Mr. Taylor to be taken to the designated provider for treatment if he was not better by Monday. The claimant disputed the owner's rendition of their conversation, but the ALJ did not credit the claimant's account of the discussion. Instead, the ALJ found that the claimant was told to contact Mr. Taylor if he needed medical treatment and that the claimant indicated to the employer he thought he would be fine by Monday. The claimant had attended orientation training during which Mr. Taylor taught workers to report injuries to him and that injured workers would be immediately assisted to the designated doctor for treatment. The ALJ was persuaded that the claimant knew where to contact Mr. Taylor to seek medical treatment on Monday, May 17, but failed to do so and that the claimant did not work that day. He was further persuaded that the following day the claimant showed up at work to sign his timecard in an office next to Mr. Taylor's office, but did not request medical treatment. After picking up his timecard the claimant was told he was not on the work schedule and that he needed to check with Mr. Taylor to be placed back on the schedule. The ALJ noted that the claimant testified he could not find Mr. Taylor and went home. However, the ALJ found that, contrary to the claimant's assertions, the claimant failed to make a reasonable effort to locate Mr. Taylor to report his injury and obtain medical care as previously requested. The claimant's failure to check in with Mr. Taylor resulted in the claimant being removed from the work schedule until he contacted Mr. Taylor to be seen by a physician and cleared for work. The ALJ rejected the claimant's contention that he stayed away from work because he was waiting for the employer to call him to return to work.
After missing work on Wednesday and Thursday the claimant appeared at work on Friday, May 21, to pick up his paycheck. When asked by the human resources manager why he stopped showing up for work the claimant replied that he did not want to perform heavy roofing work for what he considered to be sub-par wages. The claimant did not mention his injury as a reason for not showing up for work. When pressed about the wage issue the claimant responded that he didn't "have to listen to this" and walked out of the office with his check. The ALJ determined that the claimant was responsible for not showing up to work. It is therefore apparent from the ALJ's findings that he determined, the employer advised the claimant to contact Mr. Taylor regarding his need for medical treatment and that instead of contacting Mr. Taylor the claimant picked up his paycheck complained about wages, and left work.
The claimant received care from a chiropractor on May 26, 2010 and the chiropractor imposed work restrictions. The claimant did not reach maximum medical improvement and a general admission of liability indicated that the claimant's injury was compensable. However, the ALJ was persuaded that the claimant separated from employment due to his own volitional conduct that manifested in the claimant not showing up for work. Thus, the ALJ determined that the claimant was responsible for his termination from work, thereby preventing an award of temporary total disability benefits.
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. 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 volitiohally 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. 8r43-301(8), C.R.S.; Metro Moving Storage Co. v. Crussart, 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.
The claimant disputes the ALJ's credibility determinations and his corresponding factual findings. Although the ALJ explained why he did not credit the claimant's account of incidents leading up to his termination, he was not required to do so. See Tilley v. Industrial Claim Appeals Office, 924 P.2d 1173 (Colo. App. 1996) (ALJ not required to mention or make findings concerning evidence he finds unpersuasive); Wells v. Del Norte School District C-7, 753 P.2d 770, 772 (Colo. App. 1987) (hearing officer in teacher disciplinary proceedings not obligated to discuss in findings all evidence or explain how and why he resolved credibility issues), Instead, the ALJ's credibility determinations are sufficient if they adequately inform a reviewing authority how the ALJ resolved conflicts in the evidence. Regional Transportation District v. Jackson, 805 P.2d 1190 (Colo. App. 1991).
Although the claimant argues that it would be reasonable not to credit the respondents' evidence due to inconsistencies in their testimony, we have no basis for interfering with the ALJ's credibility determinations. In support of his contentions the claimant discusses the employer's alleged failure to provide a list of physicians to the claimant. To the extent the claimant contends that he is entitled to relief based on that allegation, it does not appear from a review of the hearing transcript or the pleadings that the alleged failure to provide a list of physicians under § 8-43-404(5)(a), C.R.S. or the right to select a treating physician were identified as issues for litigation. Regarding the ALJ's determination that the claimant's testimony was not credible, the ALJ found that the claimant's testimony specifically addressed in the ALJ's decision was not reasonable, sensible, consistent with the claimant's conduct, and was contradicted by the respondents' evidence. These were appropriate considerations in making his credibility determinations. Sec Bodensicck v. Industrial Claim Appeals Office, 183 P.3d 684, 687 (Colo. App. 2008) (in weighing credibility of testimony can consider its reasonableness or unreasonableness, consistency or lack of consistency, and contradiction or support by other evidence).
In any event, we may. only interfere with the ALJ's credibility determinations in extreme circumstances, such as where the record contains such hard, certain evidence that it would be error as a matter of law for any fact finder to reject the evidence. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1970). That is not the case here and we are not at liberty to disturb the ALJ's credibility determinations.
In addition, we are persuaded that the ALJ's findings are supported by substantial evidence. See § 8-43-301(8), C.R.S.; Metro Moving Storage Co. v. Gussert, supra. The claimant's assertions do not persuade us that the ALJ erred in denying him benefits.
IT IS THEREFORE ORDERED that the ALJ's order dated November 22, 2010 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ John D. Baird
_______________________ Curt Kriksciun
ADRIAN MALPICA-CUE, DENVER, CO, (Claimant).
ACADEMY ROOFING, INC., AURORA, CO, (Employer).
PINNACOL ASSURANCE, Attn: HARVEY D. FLEWELLING, ESQ., DENVER, CO, (Insurer).
LAW OFFICE OF ANGELA CORRAL, LLC, Attn: ANGELA CORRAL, ESQ., LAKEWOOD, CO, (For Claimant).
RUEGSEGGER, SIMONS, SMITH STERN LLC, Attn: LYNDA S. NEWBOLD, ESQ., DENVER, CO, (For Respondents).