Opinion
W.C. No. 4-734-158.
February 12, 2009.
FINAL ORDER
The claimant seeks review of an order on remand of Administrative Law Judge Walsh (ALJ) dated November 14, 2008, that denied the claimant's request for temporary total disability benefits. We affirm.
This matter was previously before us. In an order dated September 3, 2008, we reviewed the ALJ's supplemental order dated May 28, 2008, that determined that the claimant sustained a compensable injury, that ordered the respondents to pay medical benefits, that determined that Dr. Hall was authorized to treat the claimant, and that denied the claimant's request for temporary total disability benefits. Both the claimant and the respondents appealed the ALJ's previous supplemental order. The claimant argued that the ALJ erred in denying temporary total disability benefits and in "limiting medical care to the right upper extremity." The respondents argued that the ALJ erred in concluding that Dr. Hall was authorized. In our order dated September 3, 2008, we dismissed the claimant's petition to review insofar as it appealed the ALJ's order that the claimant only injured his right hand and arm. However, in our view the ALJ's factual findings were insufficient to permit appellate review of the issue of the claimant's entitlement to temporary total disability benefits. Accordingly, we set aside the order insofar as it denied temporary total disability benefits and remanded for further findings on that issue. We affirmed the order in all other respects.
Following the remand the ALJ entered the order under review here. No further hearing was held and the ALJ entered factual findings that for the purposes of our review may be summarized as follows. On August 7, 2007, the claimant, who was employed as a finisher, was assigned to work on a job at the Air Force Academy. The claimant's job duties at that location required him to have a security badge in order to obtain access to the secured facility. On August 7, 2007, the claimant was performing his work, which required him to drill holes into the side of a concrete elevator structure. Later that day the claimant informed the employer that he could only perform "light duty" as a result of the injury. While the claimant was working at the Air Force Academy, which was a secured facility, he repeatedly left the facility and would be locked out with no way to return to his work until someone appeared with the security pass. The claimant was aware of the restrictions in place that limited his access back into the facility once he left. On the day of his injury, however, the claimant left the facility approximately seven times and was unable to gain immediate reentry to perform his job for up to two hours. The ALJ found that the claimant failed to take reasonable measures to insure his prompt reentry to the facility and that he intentionally timed his cigarette breaks so that his reentry would be delayed and he would be unable to perform his job. The ALJ found that the claimant was responsible for his subsequent termination from employment and therefore again denied temporary total disability under § 8-42-105(4), C.R.S. 2008, and § 8-42-103(1)(g), C.R.S. 2008 (the termination statutes).
The claimant appealed the ALJ's order on remand, again arguing that the ALJ erred in denying temporary total disability benefits. Specifically, the claimant argues that there is no substantial evidence in the record to support the factual finding that he deliberately timed his breaks to frustrate his prompt reentry into the facility in order to resume his work. In this regard, the claimant argues that the only testimony that the claimant acted in that way was inadmissible hearsay. However, we are unpersuaded that the ALJ committed reversible error in his order following the remand.
As noted, the ALJ again concluded that the claimant was barred from receiving temporary total disability benefits because he was responsible for his termination from employment. In our previous order we set forth the applicable law, which has not changed appreciably since that time, and which we therefore reiterate here. Sections 8-42-105(4), C.R.S. 2008, and 8-42-103(1)(g), C.R.S. 2008 (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 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 in this regard if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2008; City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). This standard of review is narrow and requires us to view the evidence in the light most favorable to the prevailing party. 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).
As with the previous ALJ's order, the dispositive issue in determining whether the claimant was at fault for his discharge is whether he committed some volitional act or exercised a degree of control over the circumstances of his termination. Here, the ALJ found that the claimant "intentionally timed his cigarette breaks so that he would be locked out and unable to perform his primary job." Findings of Fact, Conclusions of Law, and Order on Remand at 2, ¶ 6. In our view that finding is sufficient to support the ALJ's implicit conclusion that the claimant both committed volitional acts and exercised a degree of control over the circumstances of his termination. Hence, the ALJ's conclusion that the claimant was at fault for his termination from employment is both supported by sufficient factual findings and by the correct application of the legal standard.
Moreover, the ALJ's factual findings are supported by substantial evidence and by reasonable inferences from the factual record. Thus, the claimant testified that he was discharged because he "was locked out too many times." Tr. at 16. He estimated that it occurred perhaps seven times on the day of his injury and that at least once he was denied access to the facility for two hours. Tr. at 17, 36. One of the employer's foremen, Todd Voshell, testified on behalf of the employer regarding the security procedures in place and the way in which an employee can be "locked out" if precautions to insure reentry were not taken. Tr. at 54-56. Another of the employer's witnesses, Andrew Kremer, also a foreman, testified that any employee who went outside the loading dock when there was "nobody there unloading a truck" would be locked out by the automatic electronic lock. Tr. at 70. Kremer further testified that one plausible means of insuring reentry to the facility was to time one's use of the restroom while "loading was going on so the door would have been open." Tr. at 71. The respondents' attorney asked Kremer whether the claimant could have timed his breaks so that loading was in process, and that doing so would have insured the claimant's ready access back into the facility to resume his work. Kremer responded "yes" to that question and also stated that an individual could increase the chances of being locked out by leaving after the loading had been completed. Tr. at 71. See also Tr. at 90 (testimony from owner that an employee can time breaks either to insure or to frustrate ease of reentry).
In our view the factual record permits the inferences that the claimant was aware that the employer expected employees to attempt to "time" their breaks to minimize lengthy delays in the performance of work, that the security measures at the facility required employees to make certain efforts to do so, and that the claimant failed to do so. The record further permits the inference that the claimant affirmatively timed his breaks so that he would be locked out for periods up to two hours and that he would then be unable to perform his regular work. The ALJ was not compelled to draw these inferences; however, he weighed the competing evidence and did draw them, and they are plausible ones from the record. Therefore, we may not disturb his factual findings. As noted, because those findings support the legal conclusion that the claimant was responsible for the termination of his employment, we must affirm the denial of temporary total disability benefits.
Finally, we are unpersuaded by the claimant's argument that the ALJ erred in admitting testimony that the claimant was timing his cigarette breaks so as to lengthen the time he was locked out of the secure facility. The owner of the employer's business testified that the claimant's foreman informed him that the claimant was "intentionally timing his cigarette breaks . . . so that he would get locked out and not be able to perform his work." Tr. at 86. The claimant timely objected to the question and argued that it called for inadmissible hearsay. However, we disagree with the claimant's argument that this statement from the claimant's supervisor is the sole evidence supporting the ALJ's finding that the claimant was timing his breaks to insure his being locked out. Rather, as noted previously, the record permitted the inferences that the secured facility required employees to take steps to insure their prompt reentry into the facility and to avoid being locked out for extended periods of time. As also previously noted, the evidence that the claimant was locked out seven times for periods up to two hours allows the reasonable inference that he deliberately timed his breaks to produce that result. Under these circumstances, any error in admitting the foreman's statement that the claimant was intentionally timing his breaks to result in his being locked out was harmless and will be disregarded.
IT IS THEREFORE ORDERED that the ALJ's order on remand dated November 14, 2008, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Curt Kriksciun
______________________________ Thomas Schrant
JIMMIE GARRETT, COLORADO SPRINGS, CO, (Claimant).
MCNELLY CONSTRUCTION COMPANY, INC., Attn: MS DANNIELLE HINTZ, RAND AVENUE, COLORADO SPRINGS, CO, (Employer).
AMERICAN COMPENSATION INSURANCE CO., Attn: MR SCOTT SMITH, C/O: RTW, INC., MINNEAPOLIS, MN, (Insurer).
ALEXANDER RICCI. PC, Attn: WILLIAM A ALEXANDER JR., ESQ., BLUFFS PKWY, SUITE B, COLORADO SPRINGS, CO, (For Claimant).
THOMAS POLLART MILLER LLC, Attn: DOUGLAS A THOMAS, ESQ/KAREN A, LINDEMAN, ESQ, GREENWOOD VILLAGE, CO, (For Respondents).