W.C. No. 4-440-444Industrial Claim Appeals Office.
July 22, 2002
ORDER OF REMAND
The respondents seek review of an order of Administrative Law Judge Mattoon (ALJ) which awarded the claimant temporary total benefits following her separation from modified. We conclude the ALJ’s findings are not sufficient to appellate review and remand for entry of a new order. The claimant sustained an occupational disease in the course her employment as a nurse. The of injury for the disease September 3, 1999. The claimant was placed under restrictions precluded her from performing her regular duties. However, November 1999, the employer provided modified duty as a unit. Apparently, this job sometimes required the claimant exceed her lifting restrictions, but she continued to perform .
Between August 1999 and January 12, 2000, the claimant missed six days of work. The claimant attributed five days to back pain and one day, January 12, to the flu. On January 19, 2000, the claimant was warned that further absences before March 31 could result in discipline, including termination. This warning was issued pursuant to the employer’s policy which, the ALJ found, permits termination for excessive absenteeism even if the absences are for “valid” reasons.
The claimant again missed work on February 17 and March 1. The claimant reported suffering from the flu on February 17 and back pain on March 1. On March 2, the claimant received a second warning that, except for legitimate emergencies, “no call offs [would be] be acceptable” through April 2000. However, the claimant was again absent on March 4 and 5, reporting to the employer that she had the flu. The claimant also missed work on March 11 because, she advised the employer, she was suffering bronchitis. On March 15, 2000, the employer terminated the claimant for absenteeism between January 1, 2000 and March 11, 2000.
The claimant sought an award of temporary total disability benefits commencing March 13, 2000. The respondents defended on grounds the claimant was “responsible” for her termination from employment within the meaning of § 8-42-103(1)(g), C.R.S. 2001 and § 8-42-105(4), C.R.S. 2001 (collectively the termination statutes). The ALJ found that but for the absences caused by back pain in 1999, the claimant would not have been warned in January 2000 nor terminated on March 15, 2000. Further, the ALJ found the back pain caused by the injury was not “volitional,” and, therefore, concluded the claimant was not responsible for the termination. Thus, the ALJ awarded temporary disability benefits commencing March 13, the day after the claimant last worked.
On review, the respondents argue, inter alia, that the ALJ failed to make adequate findings of fact concerning whether the claimant was “responsible” for her separation from employment within the meaning of the termination statutes. Specifically, the respondents argue the ALJ failed to consider that four out of the last five absences were unrelated to back pain, and failed to determine whether the absences were volitional and the cause of the termination. 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. 2001.
In Colorado Springs Disposal v. Industrial Claim Appeals Office,
___ P.3d ___ (Colo.App. No. 01CA0464, March 28, 2002), the Court of Appeals stated that the term “responsible,” as used in the termination statutes, appears to introduce the limited concept of “fault” as the term was used before PDM Molding Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995). Thus, we have concluded the concept of responsibility is analogous to the concept of fault in unemployment insurance cases, and depends on whether the claimant performed some volitional act or otherwise exercised a degree of control over the circumstances resulting in the termination. Padilla v. Digital Equipment Corp., 902 P.2d 414 (Colo.App. 1994), opinion after remand, 908 P.2d 1185 (Colo.App. 1995); Gutierrez v. Exempla Healthcare, Inc., W.C. No. 4-495-227 (June 24, 2002).
An employer’s 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 o all the relevant circumstances. See Gonzales v. Industrial Commission, 740 P.2d 999 (Colo.App. 1987). Similarly, 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 her conduct placed her at risk of losing her job. See Keil v. Industrial Claim Appeals Office, 847 P.2d 235 (Colo.App. 1993).
Here, the ALJ’s order apparently disregards the claimant’s absences, occurring after January 1, 2000, which allegedly involve illnesses unrelated to the occupational disease. Instead, the ALJ concluded that because the absences in 1999 were related to the injury, and because the 1999 absences played some role in the discharge, the claimant was not “responsible” for the separation. However, the ALJ’s ruling fails to consider the totality of the circumstances surrounding the separation, including the fact that five of the seven absences in 2000 were not related to back pain caused by the injury, and four of the last five absences were unrelated to the injury.
Insofar as the ALJ failed to consider the significance of the absences not caused by back pain, she erred. The proper legal standard requires the ALJ to consider the totality of the circumstances and determine whether the claimant acted volitionally in causing the discharge. We note that if the ALJ had considered the claimant’s absences which were unrelated to back pain, she might have concluded the claimant was not being truthful concerning the reasons for the absences, and that the claimant appreciated the absences could result in termination. Cf. Wence v. Woodley’s Fine Furniture Inc., W.C. No. 4-437-791 (January 30, 2001). Conversely, the record contains evidence from which the ALJ could find the absences were beyond the claimant’s control and not volitional. Of course, we should not be understood as expressing any opinion concerning the question of whether the claimant was responsible for the separation because that is a factual issue for the ALJ. We merely conclude there is some evidence which would support a finding the claimant was responsible for the termination, and the ALJ’s order does not adequately address this evidence.
In light of this conclusion, we need not address the respondents’ other arguments.
IT IS THEREFORE ORDERED the ALJ’s order dated February 12, 2002, is set aside, and the matter is remanded for entry of a new order consistent with the views expressed herein. The new order shall be based on the existing record and an additional hearing is not authorized by this order.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
___________________________ Kathy E. Dean
Copies of this decision were mailed July 22, 2002 to the following parties:
Irene Jeppsen, 17 County Road, Walsenburg, CO 81089
Huerfano Memorial Hospital, Mark Shelton, Human Resources, 23500 U.S. Highway 160, Walsenburg, CO 81089-9524
Colorado Hospital Assoc. Trust, Sharon Thompson, P.O. Box 3513, Englewood, CO 80155-3513
James M. Anderson, Esq., 4905 N. Union Blvd., Ste. 302, Colorado Springs, CO 80913 (For Claimant)
Harvey Flewelling, Esq., 5353 W. Dartmouth Ave., Ste. 400, Denver, CO 80227 (For Respondents)
By: A. Pendroy