Opinion
W.C. No. 4-591-215.
December 27, 2004.
ORDER OF REMAND
The respondents seek review of an order of Administrative Law Judge Mattoon (ALJ) insofar as it awarded the claimant temporary total disability (TTD) benefits following a discharge from employment. The respondents contend the ALJ erred in concluding the claimant did not act "volitionally" when she violated the employer's "no call/no show" policy. We set aside the contested portion of the order and remand for entry of a new order.
The claimant was employed by a temporary services agency (Spherion). The claimant was a customer service representative, and her duties involved talking to customers over the telephone and entering data on a computer. In 2003 Spherion assigned the claimant to perform services for its customer, Zurich.
In June 2003 the claimant injured her right upper extremity, but she missed no time from work. The claimant apparently aggravated her condition on October 2, 2003, "while pulling herself up to her desk at work." Following the October injury the claimant was placed under restrictions which kept her off work from October 6, 2003, through October 23, 2003. On October 23 the claimant was released to return to work with various restrictions, which included wearing a splint and taking a five minute break every thirty minutes.
The claimant returned to work on October 24. However, she experienced pain in her arm and was permitted to leave early to see her doctor. The claimant was scheduled to return to work on Monday, October 27, 2004.
The ALJ found that Spherion has a "very specific call-in policy if an employee is going to be absent or late from work." Under the policy the employee is required to phone a designated telephone number and provide certain information, including the reason for the absence and the expected date of return. The policy requires the claimant to report on each day the employee is absent, and provides that failure to follow the policy may result in discipline including termination. The ALJ found the claimant was aware of this policy. (Finding of Fact 7, Respondents' Exhibit A, p. 8).
The ALJ found the claimant did not appear for work on October 27, nor did she call the designated number to inform Spherion of her absence. The ALJ found the claimant "gave no reasonable explanation" for her failure to call in, and testified "only that her arm hurt." However, the claimant's Spherion supervisor called the claimant to ask why she was not at work, and the claimant instructed the supervisor to call the claimant's attorney.
The claimant also failed to appear for her scheduled work on October 28 and October 29. The claimant did not call the designated telephone number on either date. Instead she e-mailed her Spherion supervisor stating that she was "unable to return to work due to her work-related injury," and if the supervisor had any questions she should contact the claimant's attorney. The ALJ found the claimant was then terminated for "three days of no call/no show." (Findings of Fact 11, 13).
The respondents contended the claimant was not entitled to TTD benefits after October 29 because she was "responsible" for the termination from employment within the meaning of § 8-42-103(1)(g), C.R.S. 2004, and § 8-42-105(4), C.R.S. 2004 (collectively the termination statutes). However, the ALJ concluded that under the circumstances the claimant did not engage in any "volitional conduct" and was not at fault for the termination. Specifically, the ALJ found the claimant's inability to work from work from October 27 to October 29 was caused by the effects of the industrial injury. Further, the ALJ found that, although the claimant violated the employer's no call/no show policy on each of the three days, the violations on October 28 and 29 were "technical" because the claimant e-mailed the supervisor. The ALJ concluded the distinction between the telephone call-in procedure and the claimant's e-mail responses was not one "that an employee would reasonably expect to result in termination."
On review, the respondents contend the ALJ's findings of fact compel the conclusion that the claimant was "responsible" for the termination because she acted volitionally by violating the no call/no show policy. The respondents argue that because the employer's policy was specific concerning the call-in procedure and the claimant was aware of it, her failure to follow the policy may not be excused because she sent e-mails to the supervisor. The respondents also contend the ALJ erred in finding the absences were caused by the industrial injury. They argue that because the claimant was released to work under restrictions imposed by an authorized treating physician the claimant may not avoid responsibility for the separation by stating that she "hurt." Because we conclude the ALJ may have misapplied the law in finding the claimant's conduct was not "volitional," we remand for entry of a new order.
In Colorado Springs Disposal v. Industrial Claim Appeals Office, 58 P.3d 1061 (Colo.App. 2002), the court held the term "responsible" as used in the termination statutes reintroduces into the Act the concept of "fault" as it was understood prior to the Supreme Court's decision in PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995). Thus, the concept of "fault" used in the unemployment insurance context is instructive. "Fault" "requires a volitional act or the exercise of some control in light of the totality of the circumstances." Padilla v. Digital Equipment Corp., 902 P.2d 414, 416 (Colo.App. 1994), opinion after remand, 908 P.2d 1185 (Colo.App. 1995); see also, Brinsfield v. Excel Corp., W.C. No. 4-551-844 (July 18, 2003).
The respondents correctly argue that "volition" or the "exercise of control" may be evidenced by proof that the claimant knew what the employer required her to do but failed to carry out the required action. But, contrary to the implication of the ALJ's order, a finding of "volitional conduct" does not require proof that the claimant entertained a subjective expectation that failing to perform the specified duty would result in termination from employment. See Pabst v. Industrial Claim Appeals Office, 833 P.2d 64 (Colo.App. 1992). Of course, 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. 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); Padilla v. Industrial Claim Appeals Office, supra (fact that claimant had been warned against falsifying time cards was relevant to establish that his conduct in falsifying cards was volitional).
Here, the ALJ appears to have found that the claimant's violation of the employer's no call/no show policy was not volitional because the claimant did not think that the violation of the policy would result in termination. To the extent the ALJ ruled the claimant could not act volitionally based on her subjective belief that the violation of the policy would not result in termination, the ALJ erred.
However, the record does contain some evidence which could support an inference that the claimant did not act volitionally when she e-mailed her Spherion supervisor rather than calling the designated telephone number. The claimant's supervisor admitted that Spherion did not require the claimant to call every day she was off work between October 6 and October 23 because Spherion was aware of the claimant's restrictions and that she was off work. (Tr. P. 43). The ALJ could infer from this testimony that the claimant reasonably believed Spherion did not require strict compliance with the no call/no show policy, as long as Spherion was made aware of the claimant's intent to be absent from work and the reason for the absence. If the ALJ so found, she might conclude the ALJ's failure to call the designated number on October 28 and 29 was not "volitional" because the claimant was given to understand that strict compliance was not expected or required. See Pabst v. Industrial Claim Appeals Office, supra (if employer "misleads" claimant into believing conduct is acceptable the claimant does not act volitionally if terminated for engaging in the conduct). However, the ALJ made no findings concerning this evidence or the inferences to be drawn from it.
Under these circumstances the matter must be remanded for entry of a new order which determines whether the claimant was responsible for the termination because her failure to follow the no call/no show policy was the result of volitional conduct. A new hearing is not authorized and the determination shall be based on the existing record. We should not be understood as expressing any opinion on the underlying factual issues as determination of the facts is reserved to the ALJ. Section 8-43-301(8), C.R.S. 2004.
We need not reach the question of whether the claimant would be "responsible" for the termination if she had been discharged solely for failing to go to work from October 27 to October 29. The ALJ found, and the record supports, that it was the alleged failure to comply with the no show/no call policy, not the mere failure to go to work, which was the basis of the discharge. See Brinsfield v. Excel Corp., supra (reason for termination is question of fact to be determined by the ALJ).
IT IS THEREFORE ORDERED that the ALJ's order dated May 19, 2004, is set aside insofar as it awarded TTD benefits after the claimant's termination, and the matter is remanded for entry of a new order consistent with the view expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
____________________ David Cain
____________________ Robert M. Socolofsky
Essiclyn Harris, Colorado Springs, CO, Spherion Pacific Enterprises, Colorado Springs, CO, Laurie Iverson, ITT Specialty Risk Services, Park City, UT, Stephanie J. Stevenson, Esq., Colorado Springs, CO, (For Claimant).
Tama L. Levine, Esq., Denver, CO, (For Respondents).