Opinion
W.C. No. 4-387-785.
November 3, 1999.
ORDER OF REMAND.
The claimant seeks review of final order of Administrative Law Judge Gandy (ALJ) which denied her claim for temporary disability benefits after July 17, 1998. The claimant contends the evidence does not support the ALJ's determination that she was "at fault" for separation from post-injury employment, or that her subsequent wage loss was unrelated to the injury. We set the order aside and remand for entry of a new order.
The claimant sustained a compensable injury to her abdomen on June 24, 1998. By July 17, 1998, the claimant was placed under medical restrictions which precluded her from performing her regular employment as a stocker.
On June 25, 1998, the claimant reported for work with her husband who also worked for the respondent-employer. The ALJ found that the claimant "admitted" the husband had been drinking, and that her supervisor asked the claimant to take the husband home. On the way home the claimant and her husband became embroiled in a domestic dispute and the claimant was assaulted. The claimant was subsequently discharged from employment.
The circumstances surrounding the claimant's separation from employment were the subject of conflicting testimony. The claimant testified that she was suspended for three days because her employer believed she took "an intoxicated driver to work." (Tr. p. 19). The claimant understood that she was to return for a meeting with a manager after three days, but did not do so because it was her regular day off. (Tr. p. 20). The claimant also testified that to her knowledge her husband only drank two beers before work, and was having no difficulty walking or speaking. (Tr. pp. 19-20).
The respondent-employer's manager testified the claimant was terminated for failing to appear for the scheduled meeting and for bringing "somebody into work while intoxicated." The manager explained the policy against bringing an intoxicated person to work is a safety rule designed to prevent injuries in the workplace. (Tr. p. 70). The manager also stated that the claimant would have been terminated even if she had appeared for the scheduled meeting. (Tr. p. 73).
The ALJ found the claimant was terminated from her employment for "reasons unrelated to her alleged" injury. The ALJ also stated the claimant was "terminated for good cause" and was "at fault" for the termination. Further, the ALJ determined the claimant failed to establish that her post-separation wage loss was related to the injury.
On review, the claimant contends the evidence does not support the ALJ's determination that she was at fault for the separation from employment. Specifically, the claimant argues the evidence does not establish that her husband was "intoxicated." Because we determine that the ALJ failed to resolve conflicts in the evidence, and because his findings are insufficient to support appellate review, we remand for entry of a new order on the issue of temporary disability benefits. Section 8-43-301(8), C.R.S. 1999.
The parties agree the claimant's entitlement to temporary disability benefits is dependent on the application of principles announced in PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995). In PDM Molding the court held that in cases where the claimant is injured and subsequently terminated from employment during which the injury occurred, an initial determination must be made as to whether the termination was for fault. If the claimant was at fault for the termination, the claimant must re-establish the right to temporary disability benefits by proving that, to some degree, the injury contributed to the claimant's subsequent wage loss.
We have since concluded that the proper standard for determining whether the claimant was "at fault" for loss of post-injury employment is set forth in Padilla v. Digital Equipment Corp., 902 P.2d 414 (Colo.App. 1994). In that case the Court of Appeals held that, "at a minimum, to be deemed at fault or responsible for his discharge, a claimant must have performed some volitional act or otherwise exercised a degree of control over the circumstances resulting in the termination." Id. at 416. The court went on to state that the fault determination must turn on the specific facts of a given separation, and the cases concerning unemployment insurance are illustrative and instructive. See Mihalovic v. Climate Control of Glenwood Springs, W.C. No. 4-313-107 (February 11, 1998); DeBias v. McCool's Custom Painting, W.C. No. 4-198-955 (October 10, 1995). We are aware the Supreme Court subsequently vacated the judgment in Padilla, but merely for the purpose of requiring that the case be reviewed in light of the holding in PDM Molding. Thus, we do not understand the Supreme Court's action as constituting a rejection of the "fault" standard established by the Court of Appeals.
The respondents correctly argue that we must uphold the ALJ's findings of fact if supported by substantial evidence in the record. Section 8-43-301(8). However, the ALJ is obliged to enter specific findings of fact and conclusions of law sufficient to indicate the legal and factual basis of the order. The findings should not be merely conclusory and phrased in general terms. See Womack v. Industrial Commission, 168 Colo. 364, 451 P.2d 761 (1969).
Here, the ALJ failed to make sufficient evidentiary findings of fact to support his conclusion that the claimant was "at fault" for the separation from employment. Although the ALJ correctly found the claimant "admitted" she was aware her husband had been "drinking" before work, the ALJ did not determine whether the claimant was aware her husband was "intoxicated." Because the respondent-employer's manager testified that bringing an "intoxicated" employee to work was one basis of the termination, the ALJ was required to determine whether the claimant knew, or reasonably should have known, that her husband was intoxicated. Otherwise, the claimant did not engage in "volitional conduct" or exercise enough control to support an inference that she was at fault for the termination. Because the evidence is subject to conflicting inferences and conclusions on this matter, the matter must be remanded for specific findings of fact resolving the conflicts in the evidence.
Moreover, the ALJ failed to resolve conflicts in the evidence concerning whether or not the claimant's failure to appear for the meeting with the manager was an actual cause of the termination. Although the manager testified the claimant was terminated because she failed to appear for the meeting, he also testified that she would have been terminated regardless of her appearance. Consequently, it is possible to infer from the evidence that the claimant's failure to appear for the meeting, although volitional, played no causative role in the actual separation. Cf. Kortz v. Industrial Commission, 38 Colo. App. 411, 557 P.2d 842 (1976).
In light of this determination we need not consider whether the evidence is sufficient to support the ALJ's determination that the claimant failed to prove that her post-separation wage loss was to some degree caused by the industrial injury.
IT IS THEREFORE ORDERED that the ALJ's order dated November 12, 1998, is set aside insofar as it denied the claimant's request for temporary disability benefits subsequent to July 17, 1998. The matter is remanded for entry of a new order on this issue consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
_____________________________ David Cain
_____________________________ Kathy E. Dean
Copies of this decision were mailed November 3, 1999 to the following parties:
Melinda M. Ramirez-Alegria, P.O. Box 271628, Ft. Collins, CO 80527.
Wal-Mart Associates Inc., 755 Desert Flower Blvd., Pueblo, CO 81001-1144.
Insurance Company of the State of Pennsylvania, AIG Claim Services, P.O. Box 32130, Phoenix, Az 85064.
Mr. John Causseaux, Claims Management Inc., 3901 Adams Road, Ste. C, Bartlesville, OK 74006-8458.
Steven J. Jouard, Esq., Dwyer, Huddleson Ray, P.C., P.O. Drawer J., Ft. Collins, CO 80522, (For Claimant).
Richard A. Bovarnick, Esq., Harvey D. Flewelling, Esq., Clifton, Hook Bovarnick, P.C., 5353 West Dartmouth Ave., Ste. 400, Denver, CO 80227 (For Respondents).
BY: A. Pendroy