Opinion
W.C. No. 4-542-770.
September 19, 2003.
FINAL ORDER
The respondents seek review of a Corrected Order of Administrative Law Judge Martinez (ALJ), which awarded temporary disability benefits. The respondents contend the ALJ erroneously determined the claimant is not barred by § 8-42-105(4), C.R.S. 2002, from receiving additional temporary disability benefits. We disagree, and therefore, affirm.
On May 7, 2002, the claimant suffered a work-related back injury. The respondents admitted liability for temporary total disability benefits from May 8 to May 13, 2002, and May 23 to May 31, 2002. On June 1, 2002, the claimant returned to modified work. However, the employer discharged the claimant on June 4.
The administrator of the retirement home where the claimant was employed, Brent Basham (Basham), testified that the claimant was discharged for missing more than 11 days of work due to illness, emotional distress, family emergencies and other reasons. He also stated that he verbally warned the claimant in March 2002 that any additional absence would result in the termination of her employment. Basham then stated that the claimant's absence from work on May 21, 2002, when the claimant had a required court appearance, was the "the straw that broke the camel's back."
The claimant denied she was absent from work on May 21. Rather, she testified she was 1 hour and 15 minutes late for work and that she worked a full shift after her arrival. Further, the claimant testified that she called in to work 2 hours before the beginning of her work shift on May 21 and left a message for Basham that she would be late to work on account of the court appearance. She also denied she was absent on all the days alleged by Basham and stated that she made up several lost shifts. In addition, the claimant denied being given any warning that additional absenteeism would result in the termination of her employment. Concerning the actual termination of employment, the claimant stated she was "let go" by Basham on June 4, after Basham told her "you need to find something that is not so hard on your back."
The ALJ found Basham's testimony was not credible and expressly credited the contrary testimony of the claimant. (Finding of Fact 9). Consequently, the ALJ found the termination was due to the work-related injury, and "the reason given by respondent- employer-excessive absences-was merely a pretext." (Finding of Fact 10). Therefore, the ALJ found the claimant was not "responsible" for the termination of employment. Further, the ALJ found the claimant was temporarily totally disabled from performing her regular employment. Accordingly, the ALJ's Corrected Order awarded temporary total disability benefits for the week of May 22, 2002, from June 5 to July 28, 2002, and ongoing benefits commencing October 12, 2002. The respondents timely appealed.
On review it is undisputed the claimant is temporarily and totally disabled. Further, the respondents do not dispute the ALJ's finding that the claimant's absenteeism, which was due to illness or the illnesses of her child, was nonvolitional. Instead, the respondents renew their contention that the termination of employment was triggered by the claimant's failure to give the employer sufficient advance notice of the May 21 court appearance and, that failure constituted volitional conduct. Therefore, the respondents contend the record does not support the ALJ's finding that the claimant was not responsible for the termination of employment. We perceive no basis to disturb the ALJ's order.
To receive temporary disability benefits, a claimant must establish a causal connection between the industrial disability and the loss of wages. Section 8-42-103(1), C.R.S. 2002. Section 8-42-105(4), and identical language in § 8-42-103(1)(g), C.R.S. 2002, provides 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." 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 (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 Corporation, 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. The Padilla court stated that "at a minimum, to be deemed at fault or responsible for his discharge, claimant must have performed some volitional act or otherwise exercised a degree of control over the circumstances resulting in the termination." 902 P.2d at 416.
In determining whether the claimant is responsible, the ALJ may be required to evaluate competing factual theories concerning the actual reason or reasons for the termination. See Rodriguez v. BMC West, W.C. No. 4-538-788 (June 25, 2003). This determination is also one of fact. See Eckart v. Industrial Claim Appeals Office, 775 P.2d 97 (Colo.App. 1989). Consequently, we must uphold the ALJ's findings of fact if supported by substantial evidence and plausible inferences drawn from the record. Section 8-43-301(8), C.R.S. 2002; Arenas v. Industrial Claim Appeals Office, 8 P.3d 558 (Colo.App. 2000).
Here the ALJ explicitly rejected evidence that the employer discharged the claimant for excessive absenteeism, tardiness or the claimant's failure to provide the employer more than 2 hours notice of the May 21 court appearance. Instead, the ALJ was persuaded the claimant was discharged due to the industrial injury.
The respondents' arguments notwithstanding, the ALJ's findings are supported by substantial evidence and plausible inferences drawn from the record. Therefore, the findings are binding on review. Moreover, the ALJ's findings support the conclusion the claimant was not responsible for the termination of employment. Cf. Windom v. Lawrence Construction Co., W.C. No. 4-487-966 (November 1, 2002) (where pain from industrial injury rendered claimant unable to perform the duties of employment he was not "responsible" for termination).
Because the ALJ found the claimant's tardiness on May 21 was not the cause of the termination of employment, it follows that it is immaterial whether the claimant acted volitionally when failing to give the employer more than 2 hours advance notice of the court appearance. Therefore, the respondents' arguments do not afford us a basis to grant appellate relief.
IT IS THEREFORE ORDERED that the ALJ's order dated May 15, 2003, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2002. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed September 19, 2003 to the following parties:
Kerrie Revis, 430 Dover Ct., Grand Junction, CO 81504
Mt. Garfield Retirement Homes, 3291 Lombardy Ln., Clifton, CO 81520
American Compensation Insurance Co., c/o RTW, P. O. Box 6541, Englewood, CO 80155
IME Unit, Tower 2, #640, Division of Workers' Compensation — Interagency Mail
David B. Mueller, Esq., 101 So. 3rd St., #265, P. O. Box 3207, Grand Junction, CO 81502 (For Claimant)
Bernard R. Woessner, Esq., 3900 E. Mexico Ave., #1000, Denver, CO 80210 (For Respondents)
BY: A. Pendroy