W.C. No. 4-473-075Industrial Claim Appeals Office.
December 5, 2002
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Mattoon (ALJ) dated November 29, 2001, which awarded temporary disability benefits commencing March 23, 2001. The respondents contend the ALJ misconstrued the proof required by § 8-42-105(4), C.R.S. 2002 in finding the claimant was not “responsible” for the termination of employment on March 23. We disagree and, therefore, affirm.
To receive temporary disability benefits, a claimant must establish a causal connection between the industrial disability and the loss of wages. Section 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.”
The ALJ’s pertinent findings may be summarized as follows. On July 18, 2000, the claimant suffered a compensable injury which temporarily precluded the claimant from performing her regular employment. The employer provided modified employment within the claimant’s restrictions. However, the claimant occasionally experienced pain and headaches caused by the industrial injury which required her to leave her work shift early. On March 16, 2001, [misstated in the order as March 27] the claimant was symptomatic from the industrial injury and, therefore, obtained permission from the employer to leave early. In the process of checking out of work, the claimant forgot to perform the second step of a new two step computer check out process. As a result of the error the claimant was issued a type “A” disciplinary violation, and suspended on March 23 for exceeding the maximum allowable “A” type violations in a 90 day period. The claimant was discharged March 27, 2001.
Based upon the totality of circumstances, the ALJ found the claimant “simply forgot” to perform the second step of the new computer check out process due to her illness from the industrial injury. Because the claimant’s physical condition contributed to her failure to remember to complete the check out process, the ALJ determined the claimant’s error was not the result of a volitional act. Consequently, the ALJ determined the claimant was not “responsible” for the termination of her employment and not precluded from recovering temporary total disability benefits effective March 23, 2001.
On review the respondents contend the ALJ misapplied § 8-42-105(4) by requiring proof the claimant’s error was the result of “deliberate defiance.” The respondents also contend the evidence compelled the ALJ to find the claimant’s failure to complete the two- step check out process was volitional because it is undisputed the employer had a policy which required the process to be completed, the claimant admitted she knew the policy and had previously been warned that one more personnel violation could result in the termination of her employment. We reject the respondents’ arguments.
In Colorado Springs Disposal v. Industrial Claim Appeals Office,
__ P.3d __(Colo.App. No. 01CA0464, March 28, 2002), the court concluded § 8-42-105(4), introduces into the Act a limited concept of “fault” which focuses on the reason or reasons for the termination of employment. Slip op. p. 7. The court has held that the concept of “fault” does not require proof the claimant acted with an intentional state of mind. Johnston v. Deluxe/Current Corporation, W.C. No. 4-376-417 (June 7, 1999), aff’d., Johnston v. Industrial Claim Appeals Office (Colo.App. No. 99CA1284, April 27, 2000) (not selected for publication). To the contrary, 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 crucial issue is whether the claimant precipitated the termination of her employment by a volitional act which she would reasonably expect to result in the loss of employment. Cf. Padilla v. Equipment Corp. 902 P.2d 414 (Colo.App. 1994).
The mere fact that an employer discharged the claimant in accordance with the employer’s policy does not establish that the claimant acted volitionally or exercised control over the circumstances of the termination. 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). In Bonney v. Pueblo Youth Service Bureau, W.C. No. 4-485-720
(April 24, 2002), we considered the applicability of the termination statutes in a case where the ALJ found the injury prevented the claimant from returning to her usual job, and caused the claimant to leave work and sustain a wage loss. In that case, we held as a matter of law the claimant was not “responsible” for the termination, and the termination statutes did not preclude an award of temporary disability benefits. We reasoned that, in the unemployment context, a claimant is not considered to be “at fault” for failure to comply with the employer’s absence policy if the claimant is not physically able to notify the employer. Pepsi-Cola Bottling Co. v. Division of Employment and Training, 754 P.2d 1382
(Colo.App. 1988). Similarly, in Bestway Concrete v. Industrial Claim Appeals Office, 984 P.2d 680 (Colo.App. 1999), a claimant was not held to be at fault for “popping the clutch” on a truck where the injury rendered the claimant too weak to operate the clutch. More importantly, we noted that in Colorado Springs Disposal v. Industrial Claim Appeals Office, supra, the court concluded the term “responsible” should not be construed in a manner inconsistent with the “overall scheme of the Act.” Accordingly, we reasoned that holding the claimant “responsible” for quitting employment which the injury prevents the claimant from performing would be inconsistent with the statutory scheme. This is true because the very purpose of temporary disability benefits is to compensate for a temporary loss of wages which occurs when the claimant is physically unable to perform the pre-injury employment. Schlage Lock v. Lahr, 870 P.2d 615 (Colo.App. 1993). In Bonney, we stated that even the most stringent definition of fault permits an award of temporary disability benefits where a physical inability to continue work is caused by the injury. See Monfort v. Husson, 725 P.2d 67, 70 (Colo.App. 1986). We adhere to our prior conclusions.
In Johnson v. Industrial Claim Appeals Office, supra, an ALJ was not persuaded the claimant was mentally unable to perform her modified duty. Therefore, the ALJ determined the claimant was at fault for the termination of her employment when she failed to meet performance standards. On appeal the court upheld the ALJ’s determination after concluding the ALJ’s factual determinations were supported by substantial evidence in the record.
Accordingly, we are bound by the ALJ’s factual determinations in this case if supported by substantial evidence. This standard requires us to review the evidence in the light most favorable to the prevailing party, and accept the ALJ’s resolution of conflicts in the evidence, as well as the 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).
The respondents’ arguments notwithstanding, the ALJ’s order reflects her recognition and application of the proper legal standard. Moreover, the ALJ’s findings reflect her implicit determination that the claimant was unable to exercise control over the circumstances which precipitated the termination of her employment because she was suffering a physical impediment caused by the industrial injury. The ALJ’s determination is a plausible inference from the claimant’s testimony.
The claimant testified the industrial injury caused her to experience very bad headaches which occasionally prevented her from completing her full work-shift. (Tr. p. 9). Further, the claimant stated that on March 16 she was again symptomatic and after she obtained permission to go home early, all she could think about was getting home, lying down and relaxing to ease her symptoms. (Tr. p. 10). Based on this evidence, the ALJ reasonably inferred that the claimant’s illness from the industrial disability was so distracting that she was unable to concentrate and remember to complete the second step of the computer check out process. The ALJ’s determination is buttressed by evidence that the check out process was relatively new.
Furthermore, the ALJ’s application of § 8-42-105(4) is consistent with Colorado Springs Disposal v. Industrial Claim Appeals Office, supra, where the court held that the term “responsible” does not refer to “injury-producing activity.” Because the ALJ found the injury produced the symptoms which distracted the claimant from complying with the required computer check out procedure he did not err in finding the claimant was not “responsible” for the termination of her employment which resulted from the failure to properly complete the check out procedure.
IT IS THEREFORE ORDERED that the ALJ’s order dated November 29, 2001, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Robert M. Socolofsky
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to §8-43-301(10) and § 8-43-307, C.R.S. 2001. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed December 5, 2002 to the following parties:
Maria Aguilar, 7 Alamo Rd., Pueblo, CO 81003
Matrix Logistics, Inc., 500 Charter Oak Ranch Rd., Fountain, CO 80817
CNA Insurance Companies, c/o Dave Reed, RSKCo, P. O. Box 5408, Denver, CO 80217-5408
Dave Reed, CNA Insurance Companies, 10333 E. Dry Creek Rd., Englewood, CO 80112
Gordon J. Heuser, Esq., 625 N. Cascade, #300, Colorado Springs, CO 80903 (For Claimant)
Scott M. Busser, Esq., 300 S. Jackson St., #570, Denver, CO 80209 (For Respondents)
BY: A. Hurtado