Opinion
W.C. No. 4-676-410.
April 9, 2008.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Walsh (ALJ) dated November 8, 2007, that denied and dismissed the claimant's request for temporary disability benefits. We affirm.
This matter proceeded to hearing to determine the claimant's entitlement to temporary disability benefits. The claimant's entitlement to benefits turned on whether he was responsible for his separation from employment with the respondent employer. The ALJ's decision reflects the following findings. The claimant worked as the maintenance coordinator for the employer. He injured his right should at work, but continued to perform his regular duties until May 4, 2007, when the employer discharged him. In the previous month, the employer warned the claimant that he needed to improve his performance and provided him with a list of areas for making improvements. The claimant made improvements in some areas, but failed in others. Finally, on May 4, 2007, the employer discharged the claimant after he failed to comply with the owner's request to see that trash was removed from a stairwell near an apartment that was to be shown to a prospective tenant. The owner instructed the claimant on the preceding day to have the trash removed before leaving work that day. However, the claimant failed to do so and was terminated from his job. The ALJ was persuaded that the claimant's volitional conduct caused his termination and denied him an award of benefits.
Sections 8-42-103(1)(g) and 8-42-105(4), C.R.S. 2007 provide that in cases where "a temporarily disabled employee is responsible for termination of employment, the resulting wage loss shall not be attributable to the on-the-job injury." The Colorado Court of Appeals has stated that the "term `responsible' appears to introduce into the [Workers' Compensation] Act the limited concept of `fault' used in termination cases before the supreme court's decision in PDM [Molding Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995)]." Colorado Springs Disposal v. Industrial Claim Appeals Office, 58 P.3d 1061, 1064 (Colo.App. 2002). Under this standard, the fault determination depends on whether the claimant performed some volitional act or otherwise exercised a degree of control over the circumstances resulting in the termination. See Padilla v. Digital Equipment Corp., 902 P.2d 414, 416 (Colo.App. 1994), opinion after remand, 908 P.2d 1185 (Colo.App. 1995).
The claimant asserts on appeal that the ALJ failed to identify any factors related to his termination other than the claimant's failure to remove trash as instructed. He therefore argues that there are insufficient findings to support appellate consideration of any other potential factors that may have resulted in his discharge. Section 8-43-301(8), C.R.S. 2007 authorizes the panel to remand an order lacking findings of fact sufficient to permit appellate review. Thus, we understand the claimant to be asserting that the ALJ's decision may only be construed to determine that the basis for the claimant's discharge was the incident concerning trash removal. It is true that the ALJ is required to make specific findings as to the evidence he found persuasive and determinative. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385, 389 (Colo.App. 2000). However, the ALJ is not held to a "crystalline standard in articulating his findings of fact." Id. at 388 (citing Riddle v. Ampex Corp., 839 P.2d 489 (Colo.App. 1992)). We conclude that the ALJ's findings are both sufficient for review and supported by the record. We also conclude that, contrary the claimant's further arguments, the ALJ applied the correct standard for determining whether the claimant was at fault for his separation from employment.
The ALJ, citing Padilla, considered whether the claimant acted volitionally and was, therefore, at fault for his loss of employment. The concept of "fault" as it is used in the unemployment insurance context is "illustrative and instructive" for purposes of the termination statutes. Padilla, 902 P.2d at 416. In the context of unemployment benefits, a "volitional act" does not require willful intent. Rather, the claimant need only exercise some degree of control or choice in the circumstances such that the claimant can be said to be responsible for the separation. See Richards v. Winter Park Recreational Association, 919 P.2d 933 (Colo.App. 1996). In Richards the court of appeals held that neither statutory nor case law has imposed a state of mind requirement that a claimant must act with "willful intent" before a determination of fault may be made. To the contrary, the court noted that "fault" is not necessarily related to culpability, but only requires a volitional act or the exercise of some control or choice in the circumstances leading to the discharge from employment. In Richards, the court of appeals ruled that a claimant who forgot to perform a job task was at fault for his termination, even though he had not "willfully" failed to perform the task.
The ALJ found that the claimant "was responsible for coordinating all maintenance necessary to maintain the properties." His duties included personally inspecting properties and resolving maintenance problems in a timely manner. Findings of Fact, Conclusions of Law, and Order (Order) at 2, ¶ 3. The employer warned the claimant on February 6, 2006, that his performance was unsatisfactory and gave him a list of areas in which to improve his performance. Order at 3, ¶ 5. On May 3, 2007, the claimant received instructions that by the time he left work, he was to have trash removed from near an apartment that was to be shown to a potential tenant. However, he acknowledged that the trash was not removed that day. The employer considered the claimant's failure to have the trash removed to be "the last straw," and discharged the claimant. Order at 2, ¶ 4 and at 3, ¶¶ 5-6. The claimant had displayed unsatisfactory job performance that culminated in insubordinate behavior. Order at 3, ¶ 7. The ALJ found that the claimant was responsible for his discharge. Order at 3, ¶ 9.
The claimant disputes the ALJ's determination that he acted volitionally in the circumstances. The claimant, in effect, invites us to reweigh the evidence, but we are not at liberty to assess the weight, credibility, or sufficiency of the evidence. Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155, 1157 (Colo.App. 1993). Furthermore, our review of the record confirms that the ALJ's factual findings are supported by substantial evidence and are, therefore, binding on review. Section 8-43-301(8), C.R.S. 2007.
The claimant acknowledged being warned by the employer about the need to change his job performance. Tr. at 45. Concerning the trash removal incident, the claimant conceded that the company president advised him that she wanted the trash near an apartment removed "that day," but that the trash was not removed that day. Tr. at 22, 49, 81, 101, 103. He went on to explain that he told an on-site maintenance man to remove the trash, but that the president instructed him to fire two maintenance men. Tr. at 49-50, 81-82, 100. The claimant described trying to contend at that time with water leaks under a building. He stated that when he returned the next morning to check, the trash was still there, at which time he removed it himself. Tr. at 50, 80, 84, 101-02. The claimant later testified to his belief that the president had been made angry because of the matter of the trash. Tr. at 64. The president testified that the claimant failed to perform his work as required. Tr. at 116. She explained that the problem that ultimately resulted in discharging the claimant was the incident concerning trash removal, in which the claimant failed to have the trash removed as she had instructed him to do. Tr. at 118-20. She considered it important to have the trash removed from the premises so that the nearby apartment could be shown for leasing. Tr. at 147. The president considered the claimant's conduct in that regard to be insubordinate. Tr. at 123. The ALJ's corresponding findings are well-founded and provide ample support for his determination that the claimant was responsible for his termination from employment.
IT IS THEREFORE ORDERED that the ALJ's order dated November 8, 2007, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_____________________________ John D. Baird
_____________________________ Thomas Schrant
BLAIR HARRISON, 3246 INSPIRATION DRIVE, COLORADO SPRINGS, CO, 80917 (Claimant)
DUNMIRE PROPERTY MANAGEMENT, INC., COLORADO SPRINGS, CO, (Employer)
PINNACOL ASSURANCE, Attn: HARVEY D FLEWELLILNG, ESQ., DENVER, CO, (Insurer)
ALEXANDER AND RICCI, PC, Attn: WILLIAM A ALEXANDER, JR., ESQ., COLORADO SPRINGS, CO, (For Claimant)
RUEGSEGGER SIMONS SMITH STERN LLC, Attn: DAVID L SMITH, ESQ., DENVER, CO, (For Respondents)
PINNACOL ASSURANCE, Attn: ROBERT ERICKSON, ESQ./AMANDA CROCKER, DENVER, CO, (Other Party)