W.C. No. 4-370-762Industrial Claim Appeals Office.
December 28, 2000
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Mattoon (ALJ) which denied and dismissed the claim based on mental impairment. The claimant argues the evidence does not support the ALJ’s finding that the employer acted in “good faith” when disciplining the claimant, and that the ALJ misapplied the burden of proof in concluding the claim was based on facts and circumstances common to all fields of employment. We affirm.
The claimant was employed as a health and safety coordinator, which involved the preparation of workers’ compensation reports and instructing employees concerning workplace ergonomics. The claimant was given custody of keys which opened filing cabinets containing workers’ compensation claim files, office equipment, and safety supplies. The claimant was also given a radio to be used in the event of an injury to an employee. The claimant’s immediate supervisor, Mr. West (West), instructed the claimant to keep the keys and radio in her possession at all times while on the job.
Nevertheless, West observed that on several occasions the claimant failed to keep the keys and radio on her person. Thus, on three or four occasions in February and March 1997, West took possession of the keys and radio, and waited for the claimant to come and retrieve them. West would then remind the claimant to keep the keys and radio secure so as to prevent theft and insure the employer’s ability to respond to injuries. Eventually, the claimant reported these incidents to upper management and West was instructed not to take possession of the keys and radio. West then apologized to the claimant for upsetting her. (Tr. pp. 30-32, 35, 42-45, 48, 98-100).
The ALJ also found that in a January 1997 job evaluation West criticized the claimant’s completion of workers’ compensation forms. The ALJ determined the claimant became “upset and defensive” concerning this criticism, was convinced that West did not like her, and that West did not appreciate her abilities. Consequently, the relationship between the claimant and West became quite strained.
The claimant alleged that West’s conduct caused anxiety and depression entitling her to temporary disability and medical benefits. However, the ALJ found the claim is not compensable because West’s actions towards the claimant, and those of upper management, were “taken in good faith.” Section 8-41-301(2)(a), C.R.S. 2000. Moreover, the ALJ found that conflicts between employees and supervisors, job evaluations, and the “issuance of instructions” are common to all fields of employment. Although the ALJ recognized that facts and circumstances may render common conditions of employment uncommon, she concluded the claimant presented insufficient evidence “to demonstrate that her conflict with her supervisor, and the results which flowed from that conflict, were so unusually intense” that they were outside of the normal conditions of employment. Hence, the ALJ concluded the claim is not compensable under § 8-41-301(2)(c), C.R.S. 2000.
I.
On review, the claimant contends the record lacks substantial evidence to support the ALJ’s finding that West’s treatment of the claimant constituted good faith disciplinary action. The claimant argues the record demonstrates that West “set out on a course of behavior with the sole intent of harassing and belittling” the claimant. Further, the claimant relies on testimony from the respondent-employer’s human resources manager that West’s actions in taking the keys and radio could be described as “childish.” Under these circumstances, the claimant asserts West’s actions were objectively unreasonable and, therefore, not taken in good faith. We reject these arguments.
Section 8-41-301(2)(a) provides that mental impairment may not be considered to have arisen out of and in the course of employment if it results from a disciplinary action, work evaluation, or similar action “taken in good faith by the employer.” The claimant correctly points out that we have previously defined “good faith” personnel actions as those which are reasonable under an objective standard. Rendon v. United Airlines, W.C. No. 3-969-472 (October 14, 1993), partially set aside on other grounds, Rendon v. United Airlines, 881 P.2d 482
(Colo.App. 1994).
The question of whether employer discipline is objectively reasonable is a question of fact to be determined by examining the surrounding facts and circumstances. Gonzales v. Spanish Peaks Mental Health Center, W.C. No. 4-164-391 (February 22, 1995); cf. Holme, Roberts Owen v. Industrial Claim Appeals Office, 800 P.2d 1332 (Colo.App. 1990) (question of whether employer discipline is “arbitrary, unreasonable, or taken in bad faith” and, therefore, not common to all fields of employment, is a question of fact to be determined from consideration of relevant facts and circumstances in each particular case). Because the issue is factual in nature, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2000. This standard of review requires us to defer to the ALJ’s resolution of conflicts in the evidence, her credibility determinations, and the plausible inferences she drew from the record. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). If the testimony of a witness is internally inconsistent, the ALJ may resolve the inconsistency by believing part or none of the testimony. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968).
Here, substantial evidence supports the ALJ’s finding that West’s treatment of the claimant was “objectively reasonable” under the circumstances. The ALJ was persuaded by West’s testimony that the claimant made spelling and grammatical errors in completing workers’ compensation reports, and inferred West acted reasonably in criticizing these errors in the claimant’s evaluation. Moreover, considering the totality of the circumstances, the ALJ concluded that West’s conduct in taking the keys and radio on three or four occasions was not unreasonable. This conclusion is supported by evidence that West instructed the claimant concerning proper care of the keys and radio before confiscating them. Further, when West took the keys and radio he did so for the purposes of correcting the claimant’s repeated violations of the employer’s policy and to protect the employer’s property and interests.
It is true the respondent-employer’s human resources manager testified that West acted “childishly” in taking possession of the claimant’s keys and radio. However, the witness also testified West was “trying very, very hard to do the right thing” and simply made a mistake. (Tr. pp. 136-1 37). West himself admitted that taking the keys and radio exhibited poor judgment because he probably should have “spent more time dealing more directly with the situation and continuing to explain [to the claimant] the importance of keeping the keys and radio with her.” (Tr. p. 48). West promptly apologized to the claimant when he realized his mistake. Although the evidence is subject to conflicting inferences, the ALJ plausibly resolved the conflicts and concluded that, although West might have selected a better and more effective method of disciplining the claimant, his conduct was not objectively unreasonable under the circumstances. We cannot say the record compels a contrary conclusion, particularly because the totality of the evidence reveals the claimant was hostile to West and partly responsible for the miscommunication. Neither does every employer’s mistake or misjudgement involving the imposition of discipline amount to bad faith conduct.
II.
The claimant next contends the ALJ applied an incorrect burden of proof in finding that the claim is “based, in whole or in part, upon facts and circumstances that are common to all fields of employment.” Specifically, the claimant argues she was only required to show the conditions of her employment were not “common, usual, or ordinary.” The claimant asserts the ALJ applied an enhanced burden of proof as evidenced by her statement that the claimant failed to demonstrate the conflict with West was “so unusually intense” as to place it beyond “the normal conditions of employment.” The claimant also reiterates the argument that West’s conduct amounted to “harassment” or “stalking” which is not common to all fields of employment. We disagree with these arguments.
Section 8-41-301(2)(c) provides a claim for mental impairment may not be “based, in whole or in part, upon facts and circumstances that are common to all fields of employment.” The term “common” means usual, ordinary, or customary. White Star Linen v. Industrial Claim Appeals Office, 787 P.2d 189 (Colo.App. 1989). Some circumstances are “objectively common” to all fields of employment. Among these conditions are performance evaluations and disciplinary actions. Riddle v. Ampex Corp., 839 P.2d 489
(Colo.App. 1992); Holme, Roberts Owen v. Industrial Claim Appeals Office, supra. However, conditions which are objectively common to all fields of employment may be rendered uncommon if the facts and circumstances in a particular case show the employer’s conduct was arbitrary, unreasonable, or taken in bad faith Holme, Roberts Owen v. Industrial Claim Appeals Office, supra.
The issue of whether the conditions of employment were not common because they were unreasonable or the product of bad faith is one of fact for determination by the ALJ. Further, the test for commonality must be applied separately to each alleged stressor Trujillo v. Industrial Claim Appeals Office, 957 P.2d 1052
(Colo.App. 1998). As before, we must uphold the ALJ’s determination of the issue if supported by substantial evidence. Further, the ALJ is not held to a crystalline standard in expressing findings of fact and conclusions of law so long as the basis of the order is clear from the record. Riddle v. Ampex Corp., supra.
The claimant’s argument notwithstanding, we perceive no error in the ALJ’s application of the burden of proof. The ALJ correctly recognized the claimant had the burden of proof to establish her entitlement to compensation. Section 8-43-201, C.R.S. 2000. Further, in determining whether conditions of employment or actions of the employer are “objectively common” to all fields of employment, the ALJ must consider the particular facts and circumstances of the claimant’s job. We agree with the ALJ’s conclusion that some level of conflict between employers and supervisors is “objectively common” to all fields of employment. Here, the ALJ’s statement that the claimant’s conflict with West was not so “unusually intense” as to remove it from the “normal conditions of employment” was simply an application of the principle that the ALJ must consider the facts of the individual case. As we read the ALJ’s order, the reference to the intensity of the conflict represents the ALJ’s assessment of the claimant’s particular circumstances as measured against an objective standard, not a misapplication of the burden of proof.
Further, substantial evidence supports the ALJ’s conclusion that the conflict between West and the claimant, and West’s treatment of the claimant, were not so unusual or uncommon as to place them beyond the conditions which are common to all fields of employment. The basis for this conclusion is set forth in Part I of this order, and we do not repeat it here.
Finally, we note that Part I and Part II of this order constitute independent grounds to uphold the ALJ’s order. Thus, it is unnecessary to consider the respondents’ assertion that there is no evidence in the record that the claimant’s alleged mental impairment was caused by the conditions of her employment.
IT IS THEREFORE ORDERED that the ALJ’s order dated July 14, 2000, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
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. 2000. 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 28, 2000 to the following parties:
Gloria Spencer, 4645 Adieu Circle, Colorado Springs, CO 80917
Synthes USA, 1051 Synthes Ave., Monument, CO 80132
Synthes USA, P. O. Box 1766, Paoli, PA 19301-0800
Reliance Insurance Company, 10475 Park Meadows Dr., #100, Littleton, CO 80124-5454
Dianna Oliver, Reliance Insurance Company, P. O. Box 16025, Phoenix, AZ 85011
M. Patricia Marrison, 1749 S. 8th St., #3, Colorado Springs, CO 80906
Steven U. Mullens, Esq., P. O. Box 2940, Colorado Springs, CO 80901-2940 (For Claimant)
Anne Smith Myers, Esq., 3900 E. Mexico Ave., #1000, Denver, CO 80210-3945 (For Respondents)
Sean McDevitt, Esq., 1235 Westlake, #400, Berwin, PA 19312
BY: L. Epperson