Opinion
W.C. No. 4-651-260.
April 21, 2006.
FINAL ORDER
The claimant seeks review of an order dated November 28, 2005 of Administrative Law Judge Friend (ALJ) that found pursuant to the termination statutes that the claimant was responsible for the termination of her employment and that her wage loss was not attributable to the on-the-job injury. We affirm.
The ALJ's pertinent findings of fact are as follows. The claimant's job duties included passing out medication to the residents of the employer's nursing home. The claimant sustained a compensable injury to her low back on April 12, 2005. She was prescribed medications including ibuprofen and vicodin. The claimant was instructed not to drive or operate machinery after taking the vicodin. The claimant returned to work on April 13, 2005. Her pain increased after she began work and she took vicodin for relief of her pain. Shortly thereafter, she began to experience side effects from the vicodin, including dizziness and difficulty with concentration. While under the influence of the vicodin, the claimant signed out a medication for a resident but did not give the medication to the resident. The mistake was discovered by the employer. The claimant had undergone corrective action for similar mistakes two times previous to the April 13, 2005 incident. The claimant failed to inform her supervisor that she had taken the vicodin and was having difficulties performing the duties of her employment. The employer terminated her employment on April 27, 2005.
Based on these factual findings the ALJ found that the respondents established by a preponderance of the evidence that the claimant performed a volitional act and exercised a degree of control over the circumstances resulting in the termination. The ALJ also determined that the claimant was responsible for the termination of her employment.
On review the claimant argues that there is not substantial evidence in the record to support the ALJ's findings underlying the determination that the claimant was responsible for her termination within the meaning of § 8-42-103(1)(g), C.R.S. 2005, and § 8-42-105(4), C.R.S. 2005 (collectively the termination statutes). The claimant argues that she was not terminated, as the ALJ found, for failure to advise her supervisor she was having problems due to her medication. The claimant argues rather that she was terminated for signing out a medication which was not passed to a resident, and that this was a mistake she made as a result of being under the influence of medicine prescribed because of her accident. Therefore, she argues, she was not "responsible" within the meaning of the termination statutes. We disagree.
To receive temporary disability benefits, a claimant must establish a causal connection between the industrial disability and the loss of wages. Section 8-42-103(1), C.R.S. 2005. However, § 8-42-105(4) and § 8-42-103(1)(g), C.R.S. 2005, provide in identical language 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 Colorado Springs Disposal v. Industrial Claim Appeals Office, 58 P.3d 1061 (Colo.App. 2002), the court concluded that § 8-42-105(4) introduces into the Act a limited concept of "fault," which focuses on the reason or reasons for the termination of employment. A claimant is "responsible" for the termination if the claimant acted volitionally or exercised some control in light of the totality of the circumstances. Padilla v. Equipment Corp. 902 P.2d 414 (Colo.App. 1995) opinion after remand 908 P.2d 1185 (Colo.App. 1985).
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., supra. That determination must be based upon an examination of the totality of circumstances. A claimant does not act "volitionally," however, or exercise control over the circumstances leading to the termination if the effects of the injury preclude performance of her assigned duties and cause the termination. Kauffman v. Noffsinger W.C. No. 4-608-836 (April 18, 2005); Blair v. Art C. Klein Construction, Inc., W.C. No. 4-556-576 (November 3, 2003); Bonney v. Pueblo Youth Service Bureau, W.C. No. 4-485-720 (April 24, 2002).
The question of whether the claimant acted volitionally is ordinarily dictated by the factual circumstances found by the ALJ. Colorado Springs Disposal v. Industrial Claim Appeals Office, supra. We are bound by the ALJ's factual determinations in this case if supported by substantial evidence. Section 8-43-301(8), C.R.S. 2005. This standard requires us to review the evidence in the light most favorable to the prevailing party, and to accept the ALJ's resolution of conflicts in the evidence, as well as plausible inferences drawn from the evidence. Industrial Commission v. Royal Indemnity Co., 124 Colo. 210, 236 P.2d 293 (1951); Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
The ALJ found, and there is support in the record for the findings, that the claimant's supervisor was available to pass out medications if the claimant felt unable to do so correctly. Tr. at 23. The ALJ found that by failing to inform her supervisor that she had taken vicodin and was having difficulties performing her duties, the claimant performed a volitional act and exercised a degree of control over the circumstances resulting in the termination. Therefore, the claimant was responsible for the termination of her employment under the termination statutes and not entitled to temporary disability benefits.
There is no dispute and the ALJ found that the claimant had undergone corrective actions for similar acts involving medication for residents on two prior occasions before the incident for which she was terminated. Proof of warnings to a claimant are a circumstance which may be considered in determining whether the claimant was aware that her conduct or performance was not acceptable, and therefore volitional. Harris v. Spherion Pacific Enterprises W.C. No. 4-591-215 (December 27, 2004). See Keil v. Industrial Claim Appeals Office, 847 P.2d 235 (Colo.App. 1993) (where claimant was warned that his job was in jeopardy for failing to complete assigned tasks, the claimant's refusal to follow an instruction was volitional even though employer did not follow stepped disciplinary procedure). The evidence established that the claimant was terminated for this third failure to properly deal with medication for residents, and the ALJ, considering the totality of the circumstances, including failure to advise her supervisor that she was having problems due to her medication, found that it constituted a volitional act by the claimant. Under these circumstances, we perceive no basis on which to interfere with the ALJ's finding.
IT IS THEREFORE ORDERED that the ALJ's order dated November 28, 2005, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksciun
____________________________________ Thomas Schrant
Nicole Eskridge, Collins, CO, Alterra Clarebridge Cottage, Fort Collins, CO, American Home Assurance, c/o Gallagher Bassett Services, Inc., Englewood, CO, W.M. Busch, Jr., Esq., Loveland, CO, (For Claimant).
James B. Fairbanks, Esq., Denver, CO, (For Respondents).