W.C. No. 4-605-877.Industrial Claim Appeals Office.
April 11, 2005.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Stuber (ALJ) awarding temporary disability benefits commencing on February 8, 2004. The respondents contend that the ALJ erred in finding that the claimant was not responsible for his termination from employment within the meaning of §8-42-103(1)(g), C.R.S. 2004, and § 8-42-105(4), C.R.S. 2004 (the termination statutes). We affirm.
The ALJ’s pertinent findings of fact are as follows. The claimant was employed as an installation manager for 23 years and then for the respondent employer for 18 months after it purchased the former company. He sustained a compensable injury to his right shoulder on January 12, 2004, which temporarily disabled him from performing his regular job. He continued working for the employer in a modified duty position.
In February 2004 the claimant’s supervisor informed him that the company was requiring its managerial employees to execute certain agreements as a condition of continued employment. One of these was a “Non-Compete Agreement,” under which the employee agreed that in the event of an employment termination he or she would not work for a competitor for a period of six months. The agreement also prohibited the employee from contacting the employer’s customers for a period of one year, and imposed upon the employee certain costs depending upon the circumstances of the termination. It also provided that, in the event of a dispute over the agreement, the prevailing party could recover attorney fees and costs. The claimant refused to sign the agreement and he was discharged.
The ALJ concluded that the claimant was not responsible for his termination within the meaning of the termination statutes. The ALJ recognized that the claimant’s decision not to sign the agreement was a “volitional act.” The ALJ reasoned, however, that merely by refusing to comply with a “harsh” condition on his continued employment the claimant had not voluntarily quit that employment.
On review the respondents argue that the claimant had a choice whether or not to sign the agreement not to compete. By choosing not to sign the agreement, the respondents assert, the claimant voluntarily elected not to comply with a “condition of his employment.” Hence, in the respondents’ view, the claimant’s conduct leading to his termination was volitional and he was at fault for his job separation. We disagree.
Sections 8-42-105(4), C.R.S. (2004), and 8-42-103(1)(g), C.R.S. 2004, 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).
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. 2004; City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). 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, 914 P.2d 411
(Colo.App. 1995).
Despite the respondents’ argument, the employer’s policy providing that any managerial employee who refused to sign the agreement not to compete would be terminated is not determinative of the question of the claimant’s responsibility for his termination. The employer may not usurp the statutory definition of “responsibility” for termination from employment by adopting a policy or rule that provides for termination upon the happening of some specified event. See Gonzales v. Industrial Claim Appeals Office, 740 P.2d 999 (Colo. 1987) (despite employer’s no-fault absenteeism policy the volitional nature of the claimant’s absences must still be examined in determining whether he was responsible for his termination). Hence, the claimant’s violation of an employer’s policy does not automatically require the conclusion that the claimant acted volitionally in causing the termination. Rather, the termination statutes require the ALJ to consider the totality of the circumstances in determining whether the claimant’s conduct was the cause of the termination.
Contrary to the respondents’ argument, the ALJ properly relied for guidance on Bell v. Industrial Claim Appeals Office, 93 P.3d 584 (Colo.App. 2004). In that unemployment insurance case the court held that a claimant was not at fault for a termination that resulted from her refusal to sign an agreement that “waive[d] significant legal protections and rights.” Id.,
93 P.2d at 586. The court further held that in determining whether she was at fault for the refusal to sign the agreement an objective standard must be applied to determine whether the request the claimant refused was one that a reasonable person would have refused.
In this case the ALJ found that the agreement insisted upon by the employer required the claimant to waive the right to find future work in the area in which he had expertise. The ALJ drew the inference that this condition on the claimant’s employment was “harsh.” Implicit in the ALJ’s order is the inference that the claimant’s refusal to sign the proposed agreement was objectively reasonable. That inference is a plausible one from the record. The claimant testified that he had worked for the employer or its predecessor for over 23 years, that it was the only work he was trained to do, and that he had performed that type of work for almost 28 years. Tr. 36. The claimant further testified that he was concerned that he would be terminated because of his restrictions and the employer’s inability to accommodate them, and that the agreement would preclude him from pursuing his vocation. Tr. 36. He further expressed concern about his lack of resources to permit him to pay the attorney fees, costs, and other expenses for which he might be liable under the agreement. Tr. 36-37. Under these circumstances the ALJ’s conclusion that the claimant was not terminated for fault is consistent with the law and supported by the record.
IT IS THEREFORE ORDERED that the ALJ’s order dated November 17, 2004 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Curt Kriksciun
Richard Stearns, Morrison, CO, F.S. Inc., Littleton, CO, Cathy Brock, Universal Underwriters Insurance Group, Overland Park, KS, Craig C. Eley, Esq., Denver, CO, (For Claimant).
Frank M. Cavanaugh, Esq., Denver, CO, (For Respondents).