W.C. No. 4-555-180.Industrial Claim Appeals Office.
September 4, 2003.
ORDER OF REMAND
The respondents seek review of an order of Administrative Law Judge Mattoon (ALJ) which determined that the claimant was not responsible for a termination from employment and awarded temporary total disability (TTD) benefits. The respondents argue the findings are not supported by the evidence and the ALJ applied an erroneous standard of law in evaluating whether the claimant was responsible for the termination. We set the order aside and remand for entry of a new order.
The ALJ’s findings may be summarized as follows. The claimant sustained a compensable injury on August 20, 2002, and the treating physician imposed restrictions which precluded the claimant from returning to his regular employment. However, the employer offered modified employment which the claimant accepted on or about August 19, 2002.
The employer maintains an attendance policy which assesses “points” for absences and tardiness. An employee who accumulates six points within a 12-month period is terminated. One point is assessed for absences based on illness, and one half point is assessed for tardiness less than two hours in duration. Further, if an employee is absent for illness on consecutive days one point will be assessed for each day of absence unless, on the employee’s return to work, the employee presents a doctor’s excuse explaining the claimant was ill and unable to work on each date the claimant was absent.
The ALJ found that claimant was absent on August 19, 2002, because of car problems and was assessed one point under the attendance policy. The claimant was tardy on August 21 and September 9, 2002, and assessed one half point for each occurrence.
The claimant was absent because of illness on the consecutive workdays of September 14, 16, 17, and 18, 2002. The ALJ found the claimant returned to work on September 20, 2002, and presented a doctor’s note which was “difficult to read,” but stated the claimant was “sick” and “okay to return to work on September 20.” However, the note does not contain any reference to the specific days of absence as required by the employer’s policy. Thus, the claimant was assessed four points.
The claimant was terminated on September 25, 2002, for violating the attendance policy. (Finding of Fact 15). However, prior to September 25, the claimant was absent on September 23 because of illness. Further, on September 24 the claimant was required to go for an injury-related MRI, and because of transportation problems he was unable to return to the employer’s premises prior to the end of the work day.
The respondents contended the claimant was not entitled to TTD benefits after September 25 because he was “responsible” for the termination from employment within the meaning of § 8-42-103(1)(g), C.R.S. 2002, and §8-42-105(4), C.R.S. 2002 (collectively the termination statutes). The ALJ held a claimant is not responsible for the termination of employment unless the termination is caused by the claimant’s “volitional conduct resulting in the termination.” Here, the ALJ concluded the claimant did not engage in volitional conduct which caused the termination because he had “no control over the fact that he was ill” from September 14 through September 18, 2002. Further, the ALJ concluded the claimant was not responsible for the “additional three points” he was assessed for failure to comply with the employer’s policy requiring a doctor’s note. In this regard, the ALJ found the claimant was never told that the September 20 doctor’s note was inadequate prior to the termination on September 25, and was never given a chance to “rectify the situation.” The ALJ further found that claimant was not responsible for the absence on September 23 because he was ill, and was not responsible for the September 24 absence because it was physically impossible for him to arrive at work before quitting time.
On review, the respondents’ principal argument is that the ALJ erred in determining the claimant was not responsible for the four points which the employer assessed under its attendance policy for the absences between September 14 and September 18. The employer argues the claimant had notice of the employer’s attendance policy including the requirement to submit a doctor’s note containing specific references to each day the claimant was absent. The respondents reason the claimant acted volitionally with respect to his failure to obtain the required doctor’s note, and that the ALJ erred in concluding the employer’s failure to give the claimant a second chance to comply with the policy was of any significance under the volitional conduct standard. Because we conclude the ALJ may have misapplied the law in determining the claimant was not “responsible” for the separation, we remand for entry of a new order.
The termination statutes provide that where “a temporarily disabled employee is responsible for termination of employment, the resulting wage law 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 of Appeals held that the term “responsible” introduces into the Act thr limited concept of “fault” used in termination cases before the Supreme Court’s decision in PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995). In Longmont Toyota, Inc. v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 02CA0441, February 13, 2003), the court, citing Padilla v. Digital Equipment Corp., 902 P.2d 414 (Colo.App. 1994), held that the termination statutes “resurrected” the law as it existed prior to PDM Molding. That law, according to Longmont Toyota, was that “when a claimant’s voluntary conduct caused his or her termination and the injury played no part in the discharge, a compensable injury was no longer recognized for purposes of temporary disability benefits.”
In Padilla v. Digital Equipment Corporation, supra, the court held that the “concept of fault and its volitional nature in the unemployment insurance context is illustrative and instructive” for purposes of defining “fault” for separation from employment in workers’ compensation cases. The Padilla court stated that “at a minimum, to be deemed at fault or responsible for his discharge, claimant must have performed some volitional act or otherwise exercised a degree of control over the circumstances resulting in the termination.” 902 P.2d at 416.
Guided by this line of cases, we have adapted the unemployment insurance definitions of “fault” and “volitional conduct” when determining “responsibility” for separation from employment under the termination statutes. In Gonzales v. Industrial Commission, 740 P.2d 999
(Colo. 1987), an unemployment insurance case determining whether the claimant was at fault for a separation based on violation of the employer’s attendance policy, the court held that the violation of the employer’s policy could not be automatically equated with “fault” because it would improperly cede to the employer the determination of the claimant’s entitlement to unemployment benefits. Rather, the court concluded that the hearing officer was required to examine the totality of the circumstances surrounding the separation, including whether the claimant performed a volitional act or exercised some degree of control over the circumstances resulting in the discharge.
Similarly, we have held that violation of an employer’s policies does not automatically require the conclusion that the claimant acted volitionally in causing a separation from employment for purposes of the workers’ compensation termination statutes. As with unemployment insurance, the termination statutes require the ALJ to focus on the totality of the circumstances when deciding whether the claimant’s conduct was the cause of the termination, not whether the employer itself considers the claimant to have caused the termination. See Fahey v. Brede Exposition Services, W.C. No. 4-522-492 (May 8, 2003) (failure of claimant to report for drug testing as instructed by the employer did not render the claimant responsible for the consequent termination where the claimant was physically unable to report for the testing); Jeppsen v. Huerfano Medical Center, W.C. No. 4-440-444 (January 27, 2003) (evidence supported finding claimant was not responsible for termination under the employer’s attendance policy where the policy treated absences caused by illness as “unexcused” even when the claimant called and notified the employer that she was unable to work).
However, the concept of “volitional conduct” does not require that the claimant intentionally violate the employer’s personnel policies, nor does it contemplate that the ALJ will pass judgment on the relative merits of employer personnel policies. Rather, volition is not necessarily related to culpability, but instead it’s requires the exercise of some control or choice in the circumstances leading to the discharge such that the claimant may be said to be responsible for the termination. Richards v. Winter Park Recreational Association, 919 P.2d 933, 934 (Colo.App. 1996) (claimant at fault for termination where he knew of requirement to perform a safety check but forgot to do so, and the claimant’s responsibility was not diminished because a supervisor was responsible for checking the claimant’s work).
In most cases the question of whether the claimant acted volitionally causing the termination from employment is a question of fact for determination by the ALJ. Jeppsen v. Huerfano Medical Center, supra. Consequently, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2002. However, we may set aside an order it appears that the ALJ misapplied the law. Section 8-43-301(8).
In this case, we agree with the respondents that the ALJ erred as a matter of law in determining that the claimant’s conduct was not volitional because the claimant was not immediately advised of the inadequacy of the September 20 physician’s statement, and because the claimant was not given an opportunity to obtain a statement which complied with the employer’s policy. All that is required for volitional conduct is that the claimant be made aware of the employer’s policy and that the claimant not be prevented from complying by circumstances outside the claimant’s control. Richards v. Winter Park Recreational Association, supra. The ALJ did not find the claimant was unaware of the requirements of the employer’s policy, or that circumstances beyond the claimant’s control prevented compliance.
However, the claimant’s failure to comply with the employer’s policy, and the consequent acquisition of sufficient number of points to discharge the claimant under the employer’s policy, does not require the conclusion that the claimant was “responsible” for the termination under the Act. Gonzales v. Industrial Claim Appeals Office, supra. Rather, as noted, the ALJ is required to examine the totality of the circumstances leading to the claimant’s discharge for attendance problems, and determine whether the claimant acted volitionally with regard to the termination based on his attendance. In this regard, we note that the ALJ found, on substantial evidence, that the claimant’s illnesses prevented him from attending work on several occasions. The first “point” charged against the claimant for the absences between September 14 and 18 was apparently assessed without regard to whether the claimant was able to work, and without regard to whther he obtained any doctor’s excuse. Further, the ALJ entered a finding that the point assessed against the claimant for August 19 was based on “car problems.” The ALJ made no finding concerning whether the claimant was “at fault” for the car problems. Thus, the record contains evidence from which the ALJ could find, based on the totality of the circumstances, that the claimant was not responsible for the termination.
Under the circumstances, the ALJ’s order must be set aside and the matter remanded for entry of a new order consistent with the views expressed herein. This order does not authorize a new hearing, and the order should be entered based on the existing record. Further, we should not be understood as expressing any opinions on the resolution of the factual determinations underlying the ultimate conclusion reached by the ALJ.
IT IS THEREFORE ORDERED that the ALJ’s order dated February 7, 2003, is set aside, and the matter is remanded for further proceedings consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Robert M. Socolofsky
Copies of this order were mailed to the parties at the addresses shown below on September 4, 2003 by A. Hurtado.
Paul Bradford, 4820 Anne St., Coeur d’Alene, ID 83815
Nina McConnell, Matrix Logistics, 500 S. Charter Oak Ranch Rd., Fountain, CO 80817
Nancy A’Hern, ESIS, P. O. Box 911, Portland, OR 97207
Gordon J. Heuser, Esq., 625 N. Cascade, #300, Colorado Springs, CO 80903 (For Claimant)
Gregory K. Chambers, Esq., d and C. Sandra Pyun, Esq., 3900 E. Mexico Ave., #1300, Denver, CO 80210 (For Respondents)