W.C. No. 4-545-583Industrial Claim Appeals Office.
June 6, 2003.
ORDER OF REMAND
The respondents seek review of an order of Administrative Law Judge Martinez (ALJ) which awarded temporary disability benefits. We set aside the order and remand the matter for additional findings and a new order.
The claimant suffered a compensable injury when he stepped into a hole at work on June 20, 2002. He immediately reported the injury and was referred to Dr. Nystrom for treatment on June 24. During a medical appointment that day, Dr. Nystrom’s nurse told the claimant the employer required him to submit to a drug test. A drug test was performed which was positive for cannabis. Because the claimant failed the mandatory drug test, the employer terminated the claimant’s employment.
The respondent-employer has an Alcohol and Drug-Free Workplace policy which states:
employer is committed to an alcohol and drug-free workplace to promote the safety and well-being of its employees, customers and the public affected by the conduct of employees during the course and scope of their employment.
Section 2 of the policy prohibits the possession, use, manufacture, distribution and dispensation of a controlled substance on the employer’s premises. Section 3 further provides that employees are subject to drug/alcohol testing if a supervisor reasonably suspects the employee of drug or alcohol use based on various indicators or if the employee suffers an injury in a work-related accident and the employee’s “performance possibly contributed to the accident.” The policy further provides that an employee who fails a required drug test may be terminated.
The ALJ found Dr. Nystrom restricted the claimant to modified employment and that because the claimant’s employment was terminated, he was not offered employment within his restrictions. The claimant admitted he smoked marijuana after the industrial injury and before the drug test, and thus does not dispute the accuracy of the test results. However, the ALJ determined the respondents failed to sustain their burden to prove the claimant’s failure to pass the drug was sufficient to bar his receipt of temporary disability benefits under § 8-42-105(4), C.R. S. 2002, which provides the wage loss is not attributable to the injury where the temporarily disabled employee was responsible for termination of employment. Specifically, the ALJ found the employer’s policy only prohibits the manufacture, distribution, dispensation, possession, or use of a controlled substance by employees on the employer’s premises. The ALJ found there was no persuasive evidence that the claimant used marijuana on the employer’s premises or while performing services for the employer, and that the claimant’s use of a controlled substance at home does not violate the policy. The ALJ further found the policy “fails to address”the claimant’s use of drugs after working hours and off the employer’s premises, and that the claimant would not reasonably expect that use of marijuana after working hours and off the employer’s premises would result in his termination. Therefore, the ALJ concluded the respondents failed to establish the claimant was responsible for his termination, and ordered the respondents to pay temporary total disability benefits retroactive to June 21.
On appeal, the respondents contend the ALJ erred in his interpretation of the Drug- Free Workplace policy in concluding the claimant was not responsible for the termination of his employment, and thus not barred from receiving temporary disability benefits under § 8-42-105(4). We agree the ALJ failed to apply the applicable provision of the policy, and conclude the matter must be remanded for additional findings to resolve the claimant’s entitlement to temporary disability benefits.
To receive temporary disability benefits, the claimant must establish a causal connection between the industrial disability and the loss of wages. As indicated, § 8-42-105(4) 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.”
In Colorado Springs Disposal v. Industrial Claim Appeals Office, 58 P.3d 1061 (Colo.App. 2002), the court concluded § 8-42-105(4) introduces into the Workers’ Compensation Act a limited concept of “fault” which focuses on the reason or reasons for the termination of employment. A claimant is “responsible” if the claimant acted volitionally or exercised some control in light of the totality of the circumstances. In other words, the issue is whether the claimant precipitated the termination of his employment by a volitional act which he would reasonably expect to result in the loss of employment. Cf Padilla v. Equipment Corp. 902 P.2d 414 (Colo.App. 1994). However, the mere fact that an employer discharged the claimant in accordance with the employer’s policy does not establish that the claimant acted volitionally. See Gonzales v. Industrial Commission, 740 P.2d 999 (Colo. 1987); Pace v. Commercial Design Engineering, W.C. No. 4-451-277 (May 15, 2001). Rather, the question of whether the claimant acted volitionally is a question of fact for resolution by the ALJ. See Gonzales v. Industrial Commission, supra.
Here, the ALJ determined the claimant would not reasonably expect that his use of marijuana off the employer’s premises would result in his termination because the employer’s policy only prohibits the use of controlled substances on the employer’s premises and the policy “fails to address” off-premises use. We agree with the respondents that the applicable portion of the policy is not so limited.
We assume arguendo that the employer’s Drug-Free Workplace policy is in the nature of an employment contract and its interpretation is a question of law. Unless it is ambiguous a contract must be enforced as written Cary v. Chevron, U.S.A., 867 P.2d 117 (Colo.App. 1993). A term in ambiguous if “fairly susceptible” to more than one interpretation. Dorman v. Petrol Aspen Inc., 914 P.2d 909 (Colo. 1996). Further, in determining whether the policy is ambiguous, the language must be examined “and construed in harmony with plain and generally accepted meaning of the words used, and reference must be made to all the agreement’s provisions.” Fibreglas Fabricators, Inc. v. Klyberg, 799 P.2d 371, 374
(Colo. 1990).
We conclude the employer’s Drug-Free Workplace policy is unambiguous. While section 2 of the policy only prohibits use of alcohol or controlled substances on the employer’s premises, sections 3 and 5 are separate provisions which expressly provide for termination if the employee fails a drug or alcohol test engendered by his actions at work. Those provisions are not limited to drug or alcohol use on the employer’s premises.
Further, the stated purpose of the policy is to promote the safety of employees, customers, and the public affected by the conduct of employees in the scope of their employment. It is obvious that the conduct of employees in the workplace may be affected by off-premises use of drugs or alcohol. We thus conclude the ALJ erred in finding that the employer’s policy does not address the claimant’s use of controlled substances off the employer’s premises, or that such use could not render the claimant responsible for the termination of his employment under section 3 of the policy.
Since the ALJ’s order is based on an interpretation of the employer’s policy that is not supported by the record, the matter must be remanded to the ALJ for a new determination of whether the claimant acted volitionally, and thus was at fault or responsible for the termination of his employment. We note that we are not expressing any opinion in that regard, but are only remanding the matter to the ALJ for proper consideration of the employer’s policy in its entirety. Based on the ALJ’s assessment of whether the claimant was responsible for the termination, there shall be a new determination of the claimant’s entitlement to temporary disability benefits.
IT IS THEREFORE ORDERED that the ALJ’s order dated December 2, 2002, is set aside and the matter is remanded to the ALJ for additional findings and a new determination of the claimant’s entitlement to temporary disability benefits, consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Bill Whitacre
Copies of this decision were mailed June 6, 2003 to the following parties:
Brent Robinson, 255 Chipeta, #1, Grand Junction, CO 81501
Mays Concrete, 2399 River Rd., Grand Junction, CO 81505
CNA Insurance Companies, P.O. Box 17369, Denver, CO 80217
David B. Mueller, Esq., 101 So. 3rd St., #265, P.O. Box 3207, Grand Junction, CO 81502 (For the Claimant)
John M. Lebsack, Esq., 950 17th St., Suite 2100, Denver, CO 80202 (For Respondents)
BY: A. Hurtado