W.C. No. 4-529-704Industrial Claim Appeals Office.
February 12, 2004
ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge Mattoon (ALJ) which determined the claimant was responsible for the termination of employment and, therefore, barred from receiving temporary disability benefits under § 8-42-105(4), C.R.S. 2003. We set aside the order and remand for the entry of a new order.
Section 8-42-105(4) and identical language in § 8-42-103(1)(g), C.R.S. 2003 [the termination statutes], provide 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.”
Here, the claimant allegedly suffered industrial injuries to his back in November 2001 and January 8, 2002. As a result of the January injury the claimant was medically restricted to modified employment. The employer admitted liability for the January injury and provided modified employment.
The employer’s attendance policy provides that four unexcused absences within six months or a combination of six excused and unexcused absences within six months may result in the termination of employment. Under this policy four episodes of tardiness equal one day of absence.
On January 17, 2002, the claimant was suspended from work due for insubordination and poor work performance. Ultimately the claimant was instructed to return to work on January 29. The ALJ found that as of January 29, the claimant had accumulated 5 combined excused and unexcused absences within a six-month period and was advised that an additional absence would result in the termination of his employment. The claimant was terminated when he incurred a 6 absence on January 29. The claimant testified that he did not appear for work on January 29 because he had two flat tires on his car and had no other means of getting to work.
The ALJ determined the claimant had control over his failure to appear for work on January 29 and thus, was responsible for violating the employer’s attendance policy which resulted in the termination of his employment. Therefore, the ALJ denied the request for temporary disability benefits in connection with the claimant’s subsequent wage loss.
On review the claimant contends the ALJ erred in finding the claimant was responsible for the termination of the employment. Because the ALJ may have applied an incorrect standard of law, and because the findings are insufficient to permit appellate review, we remand for entry of a new order. Section 8-43-301(8), C.R.S. 2003.
In the termination statutes, the word “responsible” introduces the concept of “fault” which requires, at a minimum, a volitional act. Hence, the claimant is responsible for the termination of employment if the claimant exercises some control over the circumstances leading to the separation. See Colorado Springs Disposal v. Industrial Claim Appeals Office, 58 P.3d 1061 (Colo.App. 2002); Gonzales v. Industrial Commission, 740 P.2d 999 (Colo. 1987); Gutierrez v Exempla Healthcare, Inc., W.C. No. 4-495-227 (June 24, 2002). The question of whether the claimant acted volitionally is ordinarily dictated by the factual circumstances found by the ALJ. Gutierrez v. Exempla Healthcare, Inc., supra.
The mere fact that the employer discharged the claimant in accordance with its personnel rules does not establish that the claimant acted volitionally or exercised control over the circumstances of the termination. See Gonzales v. Industrial Commission, supra; Pace v. Commercial Design Engineering, W.C. No. 4-451-277 (May 15, 2001). On the other hand, an employer’s misapplication of or failure to follow its stepped disciplinary procedure does not necessarily prevent a claimant from being at “fault” for a separation if the totality of the circumstances demonstrates the claimant knew his conduct placed him at risk of losing her job. See Keil v. Industrial Claim Appeals Office, 847 P.2d 235 (Colo.App. 1993).
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 of the absence. Pepsi-Cola Bottling Co. v. Division of Employment and Training, 754 P.2d 1382 (Colo.App. 1988). 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. See also Windom v. Lawrence Construction Co., W.C. No. 4-487-966 (November 1, 2002) (where pain from industrial injury rendered claimant unable to perform the duties of employment he was not “responsible” for termination).
It follows that an employer’s attendance policy, particularly one which may result in discharge for absenteeism without regard to the reasons for the absences, is not determinative of whether a claimant acted volitionally with regard to a separation. Rather that determination must be made after consideration of all the relevant circumstances. See Gonzales v. Industrial Commission, supra.
Here, the employer testified and the ALJ found that the claimant’s employment was terminated for excessive absenteeism in violation of the employer’s attendance policy. In particular, the employer discharged the claimant for a combination of 6 excused and unexcused absences from work. However, there is evidence in the record that the claimant’s excused absences were accompanied by a doctor’s excuse releasing the claimant from work due to illness. The ALJ’s ruling fails to consider whether the claimant was in control of the absences prior to the absence of January 29.
Further, we do not disagree with the ALJ’s finding that it is the claimant’s responsibility to get to work. However, where the claimant’s inability to get to work is the result of conditions beyond his control, the fact that the claimant is responsible for getting to work is not dispositive of whether he is at fault for the termination of employment. Here, the record contains conflicting evidence concerning when the claimant discovered the flat tires on January 29, and, depending on when he discovered the flat tires, whether alternate transportation was available which would have gotten him to work on time that evening. See
(Tr. pp. 51, 52, 93, 94; Depo. Brubaker p. 104; Claimant’s Hearing Exhibit 2-p. 55).
The ALJ found the claimant had control over his failure to appear for work on January 29. (Finding of Fact 20). However, we are unable to ascertain whether the ALJ rejected the claimant’s testimony that he had two flat tires on his vehicle, or the claimant’s testimony that he did not discover the flats early enough on January 29 to make alternative arrangements to get to work or that regardless of the circumstances, the claimant was at fault because it was his responsibility to get to work on time. Consequently, the ALJ’s findings of fact are insufficient to permit appellate review of the whether she erroneously found the termination was caused by the claimant’s volitional conduct. Therefore, the matter must be remanded for additional findings of fact.
On remand the ALJ shall determine the cause of the claimant’s cumulative absences prior to January 29 and shall issue specific findings of fact concerning the basis of her determination that the claimant had control over his absence from work on January 29. Based on the totality
of the circumstances the ALJ shall then redetermine whether the claimant acted volitionally in causing the discharge.
In view of our remand, it is premature to consider the claimant’s further arguments.
IT IS THEREFORE ORDERED that the ALJ’s order dated July 18, 2003, is set aside and the matter is remanded for the entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
Copies of this order were mailed to the parties at the addresses shown below on February 12, 2004 by A. Hurtado.
Javier Gallegos, 1407 Server Dr., Colorado Springs, CO 80910
Sealy, Inc., 6275 Lake Shore Court, Colorado Springs, CO 80915
RSKCo, P. O. Box 17369, Denver, CO 80217-0369
Michael W. McDivitt, Esq., 19 E. Cimarron St., Colorado Springs, CO 80903 (For Claimant)
D. Clay Thornton, Esq., 950 17th St., #2100, Denver, CO 80202 (For Respondents)