W.C. No. 4-437-791Industrial Claim Appeals Office.
January 30, 2001
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Coughlin (ALJ) which denied temporary total disability benefits. We affirm.
The claimant began working for the employer in 1994 as a cabinet maker. On July 14, 1999, the claimant suffered an admitted repetitive motion injury which affected his right upper extremity. Due to the injury the claimant was medically restricted from performing his regular employment duties. However, the respondent provided modified employment until February 10, 2000, when the claimant’s employment was terminated.
On conflicting evidence the ALJ determined the claimant’s employment was terminated due to violation of the employer’s “no call/no show” policy, and excessive absenteeism. In support, the ALJ found a review of the employer’s attendance records from April 1996 to February 2000 indicated the claimant had a poor work attendance history. The ALJ also found that the claimant failed to call in or show up for work on December 28, and failed to call in or show up for work on time December 29, 1999, and then took the remainder of the week off. Under these circumstances, the ALJ determined the claimant was responsible for the employment termination, and precluded from receiving temporary total disability benefits.
On review the claimant contends the evidence is legally insufficient to support the ALJ’s finding that he was discharged for excessive absenteeism and violation of the employer’s no call/ no show policy. The claimant contends his absences were not excessive and were largely due to the industrial injury. We disagree.
To receive temporary disability benefits a claimant must establish a causal connection between the industrial injury and the loss of wages. Generally, the industrial injury need not be the sole cause of the claimant’s temporary wage loss as long as the injury is “to some degree” the cause of the wage loss. Horton v. Industrial Claim Appeals Office, 914 P.2d 1209 (Colo.App. 1996). However, § 8-42-105(4), C.R.S. 2000, which governs this July 1999 injury claim, [1999 Colo. Sess. Laws, ch. 90 at 266 applies to injuries which occur on or after July 1, 1999], 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.”
Here, the ALJ expressly credited the testimony of the claimant’s former supervisor, Mike McLeod (McLeod). McLeod testified that he kept plant records on employee attendance. (Tr. p. 44). McLeod stated that the decision to discharge the claimant was a “build up of continual absenteeism.” (Tr. p. 57). He also testified that he warned the claimant several times about his excessive absenteeism and told the claimant he was going to have to choose a path and decide whether he was going to be a cabinet maker or pastor. (Tr. pp. 44, 45).
The claimant testified that many of his absences from work were due to illness, or pain from the industrial injury. However, the claimant conceded that he missed time from work to assist parishioners with business or court matters. (Tr. pp. 17, 25). Further, the employer’s records reflect numerous absences due to the claimant’s work as a pastor. Therefore, irrespective of evidence that some of the last claimant’s absences were due to illness, the ALJ could infer that the claimant was responsible for the record of excessive absenteeism which ultimately resulted in the employment termination.
Moreover, it is undisputed the employer had a policy which required employees to call in if they were unable to be to work on time. McLeod stated the claimant violated the no call/no show policy on December 28, and December 29. (Tr. p. 41). He also testified that in the beginning of 2000, he notified the entire crew that there would be “some changes” in his policy of “bending over backwards continuously and covering people.” McLeod stated that after the notice he fired some employees for attendance problems. (Tr. p. 46).
The claimant admitted he knew the employer’s no call/no show policy. (Tr. pp. 29-30). He also admitted he did not call or show up for work on December 28, 1999 and was late for work on December 29 without calling in. (Tr. pp. 25, 26). Further, the claimant does not allege he was unable to call in to work. (Tr. pp. 29, 30). Therefore, the ALJ could, and did find that the claimant was responsible for the conduct which subsequently resulted in the termination of his employment.
IT IS THEREFORE ORDERED that the ALJ’s order dated August 11, 2000, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Robert M. Socolofsky
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 January 30, 2001 to the following parties:
Gerardo Wence, 1200 Kimbark St., #B8, Longmont, CO 80501-3839
Woodley’s Fine Furniture, Inc., 320 S. Sunset St., Longmont, CO 80501-6107
Curt Kriksciun, Esq., Colorado Compensation Insurance Authority d/b/a Pinnacol Assurance — Interagency Mail (For Respondents)
William E. Benjamin, Esq., 5350 Manhattan Circle, #105, Boulder, CO 80303 (For Claimant)
Lisa Varriale, Esq., 600 17th St., #1600N, Denver, CO 80202
BY: A. Pendroy