W.C. No. 4-529-704.Industrial Claim Appeals Office.
September 10, 2004.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Mattoon (ALJ) which determined the claimant is barred by § 8-42-103(1)(g), C.R.S. 2003, from receiving temporary disability benefits after January 30, 2002. We affirm.
Section 8-42-103(1)(g), and identical language in § 8-42-105(4), C.R.S. 2003 [the termination statutes], 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 this context, 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 claimant suffered an industrial injury to his back on January 8, 2002. As a result of the January injury, the claimant was medically restricted to modified employment. The employer admitted liability for the injury and provided modified employment.
On January 17, 2002, the claimant was suspended from work due to insubordination and poor work performance. Ultimately the claimant was instructed to return to work on January 29.
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. The ALJ found that as of January 29 the claimant had accumulated 5 excused and unexcused absences within a six-month period. The claimant was terminated due to his 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.
In a prior order dated July 18, 2003, the ALJ determined the claimant had control over his absences 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. The claimant timely appealed.
On review of the July 18 order we concluded the claimant’s failure to comply with the employer’s attendance policy is not determinative of whether the claimant acted volitionally in causing the termination of his employment. Indeed, an employee 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. See Pepsi-Cola Bottling Co. v. Division of Employment and Training, 754 P.2d 1382
(Colo.App. 1988). Rather, a determination of whether the claimant was responsible must be based on the totality of circumstances.
Because the record contained evidence that some of the claimant’s pertinent absences were caused by illness, we set aside the ALJ’s order and remanded the matter to the ALJ to redetermine the cause of the claimant’s cumulative absences prior to January 29. We also directed the ALJ to enter specific findings of fact concerning the basis of her determination that the claimant had control over his absence from work on January 29.
On remand, the ALJ found the claimant’s 5 absences prior to January 22, 2002, were outside the claimant’s control. However the ALJ found the absences on January 22, 23, 24 and 29 were within the claimant’s control. Therefore, the ALJ determined the totality of circumstances established the claimant acted volitionally in causing the termination of his employment and consequently, the ALJ denied the request for temporary disability benefits commencing January 30, 2002.
On review of the order on remand the claimant contends the record fails to support the ALJ’s finding that the claimant was responsible for the termination of employment. We disagree.
As we stated in our Order of Remand, the mere violation of an employer’s personnel policy 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 his job. See Keil v. Industrial Claim Appeals Office, 847 P.2d 235 (Colo.App. 1993). To the contrary, whether the claimant acted volitionally is ordinarily dictated by the factual circumstances found by the ALJ and the ALJ’s findings must be upheld if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2003 Gutierrez v. Exempla Healthcare, Inc., supra.
Substantial evidence is that quantum of probative evidence which a rational fact-finder would accept as adequate to support a conclusion, without regard to the existence of conflicting evidence. Durocher v. Industrial Claim Appeals Office, 905 P.2d 4 (Colo.App. 1995). In applying the substantial evidence test, we may not substitute our judgment for that of the ALJ concerning the credibility of the witnesses or the sufficiency and probative weight of the evidence. Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo.App. 1993); Martinez v. Regional Transportation District, 832 P.2d 1060 (Colo.App. 1992).
We agree with the claimant that there is no evidence to support the ALJ’s finding that the employer attempted to contact the claimant “approximately six times” between January 21 and January 22. (Finding of Fact 14). Rather, the evidence indicates the six attempts were made between January 21 and January 25. (Depo. pp. 94,95). However, we consider the ALJ’s error harmless.
The claimant testified that the suspension was indefinite in duration and that he understood the employer would contact him to let him know if he was going to be fired or allowed to return to work. (Tr. p. 29). The ALJ implicitly determined that under these circumstances, a reasonable worker would have been waiting for a call from the employer and would have instructed his family to notify him of the call, unless the worker did not really want to return to work. See Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000) (Panel may consider findings which are necessarily implied by the ALJ’s order).
Here, it is undisputed the employer left a message for the claimant on January 22 which directed the claimant to return to work. (Depo. p. 20). The claimant admitted he received the message by January 23 but declined to return until January 27 because he had other employment. (Tr. pp. 69; 87). Thus, the record supports the ALJ’s salient finding that the claimant exercised some control over his failure to return to work between January 21 and January 24. Under these circumstances, the ALJ’s erroneous reference to 6 calls between January 21 and 22 was harmless, especially since the ALJ determined the proximate cause of the claimant’s discharge was his failure to report to work on January 29, 2002, when he knew it was his last change to keep his job. See Eckart v. Industrial Claim Appeals Office, 775 P.2d 97 (Colo.App. 1989).
We also reject the argument the ALJ erred in finding the claimant exercised control over his failure to report to work on January 29. The record contains evidence the claimant had 3 hours between the time he discovered the flat tires on his vehicle and the beginning of his work shift on January 29. (Tr. p. 51). Nevertheless, the claimant testified that he immediately called the employer and told them he would not be in to work. Based upon this testimony the ALJ could reasonably infer that the claimant elected not to investigate alternative forms of transportation, such as a taxicab to get to work.
Moreover, the record amply supports the ALJ’s finding that the claimant was fully aware by January 29 that his employment was at risk and any further personnel violation would result in the termination of his employment. (Depo. p. 34; Tr. p. 50, 103; Claimant’s Hearing Exhibit 2). Consequently, the claimant’s decision not to make any effort to get to work on January 29 after discovering the flat tires on his vehicle supports the ALJ’s finding that the claimant exercised control over the conditions which lead to his discharge. Therefore, regardless of whether the employer miscounted the claimant’s cumulative unexcused absences prior to January 22, the record supports the ALJ’s determination the totality of circumstances proves the claimant’s volitional actions were the cause of the employment termination.
The claimant’s further contentions have been considered and do not alter our conclusions.
IT IS THEREFORE ORDERED that the ALJ’s order dated, April 16, 2004, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________ David Cain
____________________ Kathy E. Dean
Javier Gallegos, Colorado Springs, CO, Sealy, Inc., Colorado Springs, CO, RSKCo, Denver, CO, Michael W. McDivitt, Esq., Colorado Springs, CO. (For Claimant).
D. Clay Thornton, Esq., Denver, CO, (For Respondents).