Opinion
W.C. No. 4-551-261.
May 17, 2004.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Mattoon (ALJ), which determined the claimant is barred from receiving additional temporary disability benefits under § 8-42-105(4), C.R.S. 2003. We affirm.
In July 2002, the claimant suffered a compensable injury while employed as a grill cook for J.P. McGill's (McGill's) casino restaurant. The claimant resumed modified part-time employment at McGill's and the respondents admitted liability for temporary partial disability benefits. On November 5, 2002, the claimant's employment was terminated.
To receive temporary disability benefits, a claimant must establish a causal connection between the industrial disability and the loss of wages. Section 8-42-105(4) and identical language in § 8-42-103(1)(g), C.R.S. 2003 (termination statutes), provide 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."
The ALJ found that over the course of the claimant's employment, she received several reprimands for various violations. On October 18, 2002, the claimant was given a written reprimand for obtaining free food from the employer's "Deli." The ALJ found the reprimand informed the claimant she was to obtain one discounted meal per shift in the casino restaurant where she worked and that further similar violations could result in the termination of her employment. The ALJ determined the claimant again violated the employee discount meal policy on November 3, 2002, when she went to the Deli and purchased six meals at a discounted price and then took them home to her family. Therefore, the ALJ determined the claimant was responsible for the termination of employment and barred from receiving temporary disability benefits under § 8-42-105(4).
On review, the claimant contends the ALJ failed to consider the totality of circumstances in finding that she was responsible for the termination of employment, and erroneously equated the violation with volitional conduct. The claimant also contends there is insufficient evidence that McGill's had a meal policy and that she was aware of the policy she allegedly violated. We are not persuaded there is any reversible error in the ALJ's order.
In Colorado Springs Disposal v. Industrial Claim Appeals Office, 58 P.3d 1061 (Colo.App. 2002), the Court of Appeals held that the term "responsible" introduces 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). In Padilla v. Digital Equipment Corp., 902 P.2d 414 (Colo.App. 1994), the court held that the "concept of fault and its volitional nature in the unemployment insurance context is illustrative and instructive" for purposes of defining "fault" for separation from employment in workers' compensation cases. In unemployment cases, the concept of "volitional conduct" requires the exercise of some control or choice in the circumstances leading to the discharge such that the claimant may be said to be responsible for the termination. Richards v. Winter Park Recreational Association, 919 P.2d 933, 934 (Colo.App. 1996) (claimant at fault for termination where he knew of requirement to perform a safety check but forgot to do so, and the claimant's responsibility was not diminished because a supervisor was responsible for checking the claimant's work).
However, as the claimant correctly points out, the violation of an employer's policy is not automatically equated with "fault" because that would improperly cede to the employer the determination of the claimant's entitlement to benefits. See Fahey v. Brede Exposition Services, W.C. No. 4-522-492 (May 8, 2003) (failure of claimant to report for drug testing as required by employer policy did not render the claimant responsible for the consequent termination where the claimant was physically unable to report for the testing); Jeppsen v. Huerfano Medical Center, W.C. No. 4-440-444 (January 27, 2003) (evidence supported finding claimant was not responsible for termination under the employer's attendance policy where the policy treated absences caused by illness as "unexcused" even when the claimant called and notified the employer that she was unable to work). Rather, the ALJ must examine the totality of the circumstances surrounding the separation to determine whether the violation was volitional. See Gonzales v. Industrial Commission, 740 P.2d 999 (Colo. 1987).
In most cases, the question of whether the claimant acted volitionally causing the termination from employment is a question of fact for determination by the ALJ. Jeppsen v. Huerfano Medical Center, supra. Consequently, we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2003. Under the substantial evidence standard, we must review the evidence in the light most favorable to the prevailing party, and accept the ALJ's resolution of conflicts in the evidence, as well as the plausible inferences which she drew 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).
We agree with the claimant that the evidence is subject to highly conflicting inferences concerning the exact nature of McGill's discount meal policy and the claimant's knowledge of the policy. However, we reject the claimant's contention that the ALJ failed to resolve the conflicts. See Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000) (ALJ is not held to a crystalline standard in articulating her findings of fact). As we understand the order, the ALJ resolved the conflicts in favor of the respondents and determined that McGill's had a meal policy which restricted each employee to one discounted meal purchase per day from a casino restaurant at a cost of $2. Thus, the ALJ determined the claimant violated the policy on November 3 by purchasing multiple meals at the cost of $2 each.
We note, as the claimant argues, that the October 18 warning does not refer to "discounted" meals, as the ALJ found. Rather, the warning restricted the claimant to obtaining free food at the casino where she worked, and on its face does not convey that the claimant is also limited to purchasing one discounted meal per day in other facilities. However, contrary to the claimant's contention, the record contains substantial evidence that the employer had a discount meal policy. Moreover, we conclude that policy supports the ALJ's determination that the claimant is responsible for her termination.
In relevant part, the employer's handbook (respondents' exhibit H) states:
"DISCOUNTED MEAL POLICY
Each employee is currently eligible for discounted meals at the Midnight Rose Hotel Casino. All meals are to be taken during your scheduled break time and should be eaten in the BREAK AREA."
Furthermore, the claimant admitted that when she began working at McGill's in 2001, there was an employee menu and employees could purchase food for $2 at a sister casino. The claimant stated she later got the management to approve a similar employee menu at J.P. McGill's, and admitted employees would paid $2 for each meal except where management approved a free meal. (Tr. p. 84). Testimony from the claimant and Twila Vancauwenbergh that they occasionally took home free meals does not compel a contrary result. Both witnesses admitted they obtained specific permission from management before getting any meal for free. (Tr. pp. 21, 133). Similarly, evidence employees were sometimes given free meals during their shifts is not inconsistent with the ALJ's conclusion.
Because the phrase "discounted meals" is stated in the plural, the claimant argues that it allowed employees to purchase an unlimited number of meals per day. However, in view of the requirement that the "meals" be eaten during the employee's scheduled break and eaten in the break area, we conclude the policy did not authorize the claimant to purchase multiple meals to be eaten after her work shift at home. Further, we conclude that a reasonable person in the claimant's position would understand from the policy read as a whole, that at best one discounted meal could be purchased and eaten during each scheduled break. Therefore, the ALJ did not err in finding the claimant's meal purchase on November 3 failed to comply with the employer's meal policy.
The record also contains respondents' exhibit K, a discount meal policy which states: "Meals will be $2.00 for each employee," and " One meal per day per employee." (Emphasis in original). The employer's witness, Richard Mesher, testified that the employer posted this policy (Tr. p. 76).
However, the claimant contends exhibit K was improperly admitted because it was not filed in accordance with Rule VIII(I)(1), 7 Code Colo. Reg. 1101-3 at 30, and was not produced in response to permitted discovery. The claimant therefore contends that the sanction of excluding the document should have been imposed. Again, we perceive no reversible error.
The respondents conceded exhibit K was not timely exchanged, but implicitly argued there is good cause to admit the exhibit. The ALJ noted that evidentiary questions remained which affected the weight of the exhibit, and admitted the exhibit subject to "cross-examination and examination regarding what this document means." (Tr. p. 55). Further, the ALJ stated she was "not finding a discovery violation."
Under Rule VIII(I)(1), documents not provided to opposing counsel at least 20 days prior to the formal hearing are not admissible absent a showing of good cause. The ALJ has considerable discretion in determining whether a party has demonstrated good cause for failing timely to provide a document to opposing counsel. See IPMC Transportation Co. v. Industrial Claim Appeals Office, 753 P.2d 803 (Colo.App. 1988). Factors the ALJ may consider in determining whether good cause exists for the untimely submission of a medical report include the significance of the evidence, whether or not the evidence might have been obtained and submitted by the exercise of reasonable diligence prior to the hearing, and the prejudice to the opposing party by allowing the evidence. See Raffaelo v. Industrial Commission, 670 P.2d 805 (Colo.App. 1983). Sanctions for failure to comply with permitted discovery are permitted if the failure is "willful." See § 8-43-207(1)(e), C.R.S. 2003.
We note that if the circumstances establish good cause for admitting the late exhibit, it would seem implicit that the respondents did not "willfully" withhold the document. Conversely, if the circumstances do not establish good cause, the exhibit would automatically be excluded under Rule VIII and it would be unnecessary to determine whether exclusion was an appropriate sanction under the statute.
In any event, we conclude that any error in admitting exhibit K was harmless because the ALJ's order does not refer to exhibit K, nor is there any suggestion that the ALJ relied on the exhibit in finding that the claimant was aware of the employer's meal policy. See § 8-43-310, C.R.S. 2003; A R Concrete Construction v. Lightner, 759 P.2d 831 (Colo.App. 1988) (error which is not prejudicial will be disregarded). Instead, the ALJ found the claimant was aware of the employer's discount meal policy by virtue of the October 18, 2002 written reprimand. Further, we determine that the handbook language supports the ALJ's conclusion independent of Exihibt K.
The claimant's remaining arguments have been considered and do not alter our conclusions. The ALJ is not required to make findings of fact on every piece of evidence, only the evidence she found persuasive and dispositive. Here, the ALJ was persuaded the claimant was discharged for knowingly violating the employer's meal policy. Therefore, the absence of any findings concerning other reprimands and policy violations is immaterial.
Finally, the claimant's testimony that she made the November 3 meal purchase during a scheduled break and was then sent home early is not inconsistent with the ALJ's finding that the purchase occurred "near the end of her shift." Therefore, the claimant's challenges to Finding of Fact 6 are rejected.
IT IS THEREFORE ORDERED that the ALJ's order dated September 22, 2003, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
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Kathy E. Dean
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Dona Halsey
Latasha Hart, Cripple Creek, CO, J.P. McGill's, Cripple Creek, CO, Kim Dick, CNA Insurance, Denver, CO, Michael W. McDivitt, Esq., Colorado Springs, CO, (For Claimant).
D. Clay Thornton, Esq., Denver, CO, (For Respondents).