Opinion
W.C. No. 4-704-954.
October 6, 2008.
ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge Harr (ALJ) dated April 14, 2008 that determined that the claimant was responsible for her termination and therefore denied and dismissed the claimant's request for temporary total disability (TTD) benefits. We set aside the order, and remand for entry of a new order.
The claimant was hired as a probationary employee on October 21, 2006. The claimant sustained an admitted injury on November 6, 2006. The claimant was terminated on November 14, 2006 for excessive absenteeism. The ALJ determined that the respondents had proven by a preponderance of the evidence that the claimant was responsible for termination of her employment such that her wage loss may not be attributable to her industrial injury. Therefore, the ALJ denied and dismissed the claimant's request for (TTD) benefits.
The claimant's arguments on appeal involve the issue of her responsibility for her termination. Sections 8-42-105(4), C.R.S. 2008, and 8-42-103(1)(g), C.R.S. 2008 (referred to as the termination statutes), contain identical language stating that in cases "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 Colorado Springs Disposal v. Industrial Claim Appeals Office, 58 P.3d 1061 (Colo.App. 2002), the court held that the term "responsible" reintroduced into the Workers' Compensation Act the concept of "fault" applicable prior to the decision in PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995). Hence the concept of "fault" as it is used in the unemployment insurance context is instructive for purposes of the termination statutes. In that context "fault" requires that the claimant must have performed some volitional act or exercised a degree of control over the circumstances resulting in the termination. Padilla v. Digital Equipment Corp., 902 P.2d 414 (Colo.App. 1995) opinion after remand 908 P.2d 1185 (Colo.App. 1985). That determination must be based upon an examination of the totality of circumstances. Id. The burden to show that the claimant was responsible for her discharge is on the respondents. Colorado Compensation Insurance Authority v. Industrial Claim Appeals Office, 18 P.3d 790 (Colo.App. 2000).
The question whether the claimant acted volitionally or exercised a degree of control over the circumstances of the termination is ordinarily one of fact for the ALJ. Knepfler v. Kenton Manor, W.C. No. 4-557-781 (March 17, 2004). Accordingly, we must uphold the ALJ's findings if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2008; Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
The claimant first contends that the ALJ erred by failing to make any findings or written inquiry into the volitional nature of her absences. The claimant argues that the ALJ made only a conclusory finding regarding the volitional nature of the claimant's absences and the evidence does not support that finding.
Here the ALJ credited the testimony of the employer's office coordinator who had investigated the claimant's absenteeism at the request of the claimant's supervisor. The office coordinator testified in part using employer records. Exhibit 3 at 39. The ALJ with record support made the following findings. On October 27, 2006, the claimant was absent for 1.5 hours to attend a doctor's appointment. Tr. 42 55. On October 29, 2006, the claimant was absent for 8 hours to attend the funeral of her roommate. Tr. 55-56. On November 2, 2006, the claimant called to say she could not find a babysitter and would be late to work, but she failed to show for her entire shift. Tr. 56-57. The claimant on November 5, 2006 was 20 minutes late for work. Tr. 56 66. On November 8, 2006 the claimant was absent for 1.5 hours to attend her daughter's medical appointment. Tr. 56 64 66. On November 13, 2006, the claimant was absent to care for her sick daughter. Tr. 34 62-63. Although the claimant was also absent for a period of time to attend the appointment with an authorized treating physician, her workers' compensation medical appointments were not considered absences that would result in termination. Tr. 58 66. The employer's office coordinator testified that the employer terminated the claimant for excessive absenteeism and that the employer may terminate probationary employees for even one absence during the 30-day trial period. Tr. 53 51 61.
The ALJ also found with record support that the claimant understood she was a probationary employee during the initial 30-day trial period and any absenteeism could result in termination. Tr. 48-49 51-52 59-61. The ALJ found that the claimant should reasonably have known that one absence, much less five or six absences, during the first 24 days of her 30-day probationary period was excessive, unreasonable, and likely would result in termination. Tr. 49 60-61. The ALJ concluded that the claimant's absenteeism was volitional and the respondents had proved by a preponderance of the evidence that the claimant was responsible for her termination.
The claimant argues that in determining whether claimant is responsible for separation caused by absenteeism, the volitional nature of the claimant's conduct or ability to avoid the absences must be considered. We acknowledge that the ALJ is under no obligation to address evidence that is not found to be persuasive, but the ALJ must make sufficient findings of fact to indicate the factual and legal basis of the order so as to permit meaningful appellate review. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000). Purely conclusory findings are insufficient. Womack v. Industrial Commission, 168 Colo. 364, 451 P.2d 761 (1969). Here, although as noted above the ALJ made extensive findings on the claimant's absences, we agree with the claimant that the ALJ's findings on the volitional nature of the absences were insufficient.
The ALJ in his examination of the claimant's conduct that led to the separation found that the claimant's excessive absenteeism was volitional because the claimant understood that she was a probationary employee during the 30-day trial period and further understood from her orientation that any absenteeism could result in termination. The ALJ further found that a reasonable probationary employee should understand that while certain absences might otherwise seem reasonable for employees under a collective bargaining agreement, those same absences likely would result in termination for probationary employees. The ALJ concluded that the claimant should reasonably have known that one absence, much less than five or six absences during the first 24 days of her 30-day probationary period was excessive, unreasonable and likely would result in termination.
As we read the order, the ALJ determined the claimant was "responsible" for her separation from the employer because the claimant understood that as a probationary employee any absence could result in termination and that although certain absences might be reasonable for employees who were not on probation those same reasonable absences for a probationary employee could result in termination. However, under Gonzales v. Industrial Commission, 740 P.2d 999 (Colo. 1987) it is necessary in determining whether a claimant is responsible for separation caused by absenteeism that the volitional nature of the claimant's conduct or ability to avoid the absences must be considered.
In Gonzales an employee was dismissed because he had received five disciplines in the employer's five-step disciplinary program that included a "no-fault" absentee policy. The court in Gonzales determined that the employee was not automatically disqualified from receiving unemployment compensation benefits. The court found that the employer's policy was not determinative of the question of the claimant's responsibility for his termination. The employer may not usurp the statutory definition of "responsibility" for termination from employment by adopting a policy or rule that provides for termination upon the happening of some specified event. Hence, the claimant's violation of an employer's policy on absenteeism does not automatically require the conclusion that the claimant acted volitionally in causing the termination. See Stearns v. F. S. Inc., W. C. No. 4-605-877 (April 11, 2005). Rather, the termination statutes require the ALJ to consider the totality of the circumstances in determining whether the claimant's conduct was the cause of the termination.
Here the ALJ appears to have relied on the employer's policy that as a probationary employee any absence could result in the termination of the claimant. Accordingly, the matter must be remanded to the ALJ for the entry of a new order on the issue of temporary disability benefits. On remand, the ALJ shall determine whether the claimant was responsible for her termination by considering the volitional nature of each absence and the claimant's conduct or ability to avoid the absences. Based upon these determinations the ALJ shall enter a new order on the issue of temporary disability benefits.
Because the claimant's remaining arguments may come up on remand we make the following determinations. The claimant argues that the ALJ erred in determining that she was aware of the company's policy to terminate for any absence and that the ALJ erred in adopting his own standard in determining what absences were "excessive" by finding that even one absence would be enough to terminate a probationary employee. We conclude that the ALJ's findings of fact concerning the claimant's knowledge that her conduct could lead to termination and that even one absence could be enough for termination are supported by substantial evidence. The office coordinator for the employer testified that the employees were told during orientation that if they were absent for any reason even for one day they could be terminated. Tr. 60-61. The existence of evidence recited by the claimant which, if credited, might permit a contrary result affords no basis for relief on appeal. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002).
IT IS THEREFORE ORDERED that the ALJ's order issued April 14, 2008 is set aside and the matter is remanded to the ALJ for the entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
___________________ Curt Kriksciun
___________________ Thomas Schrant
STACY SKAGGS, FORT MORGAN, CO, (Claimant).
WESTERN SUGAR COOPERATIVE, Attn: CHERYL BURDETTE, FORT MORGAN, CO, (Employer).
ACE ESIS AMERICAN INSURANCE CO, Attn: ANITA FRESQUEZ-MONTOYA, TAMPA, FL, (Insurer).
BRITTON MORRELL, ESQ., C/O: THE MORRELL LAW OFFICE, GREELEY, CO, (For Claimant).
ERICA A. WEBER, ESQ., C/O: CLIFTON, MUELLER BOVARNICK, PC, DENVER, CO, (For Respondents).