Opinion
W.C. No. 4-784-552.
July 2, 2010.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Broniak (ALJ) dated February 2, 2010, that determined the claimant was not responsible for her termination and awarded temporary total disability (TTD) benefits. We affirm.
The claimant suffered an industrial injury on January 13, 2009. The claimant was referred to Concentra for medical treatment. The claimant was placed on restrictions and the employer accommodated those restrictions. At the hearing the respondents contended that the claimant was responsible for her termination from employment for purposes of § 8-42-103(1)(g), C.R.S. 2008 and § 8-42-105(4), C.R.S. 2008 (referred to as the "termination statutes.
The ALJ concluded that the claimant was not responsible for her termination from employment and awarded continuing TTD benefits until terminated pursuant to statute. The respondents on appeal argue that the ALJ erred in finding that the claimant was not responsible for her termination and thus erred in awarding TTD benefits. We are unpersuaded that the ALJ committed any reversible error.
The respondents argue that the TTD benefits should have been terminated pursuant to the termination statutes. These statutes generally bar a claimant from receiving temporary total disability benefits where she is at fault for the termination of her employment. Sections 8-42-105(4) and 8-42-103(1)(g) 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). An individual acts volitionally if she is able to exercise some degree of control in the circumstances which caused the separation. Gonzales v. Industrial Commission, 740 P.2d 999 (Colo. 1987); Velo v. Employment Solutions Personnel, 988 P.2d 1139 (Colo. App. 1998). 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.; City of Durango v. Dunagan, 939 P.2d 496 (Colo. App. 1997). Again, 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).
Here, the ALJ concluded that the claimant was not responsible for her termination from employment and made the following findings of fact in support of that conclusion. The claimant's work injury required her to attend physical therapy (PT) appointments. The claimant missed a PT appointment and one of the managing dentists, Dr. Moncayo, directed the claimant never to miss her medical appointments in the future. The claimant tried to coordinate her work schedule to accommodate her medical appointments and to obtain coverage by other staff when she needed to be away from work. On March 31, 2009, the claimant was scheduled to work. The claimant also had an appointment with Concentra. The claimant attended the appointment with Concentra then reported to work. Upon arrival, the claimant was directed into an office to meet with Dr. Rotolo. Dr. Rotolo terminated the claimant's employment for missing work that day.
The ALJ found that if the claimant had missed the Concentra appointment because she could find no coverage for her shift during her absence she would have violated an employer directive not to miss appointments with Concentra. The ALJ found that the claimant went to the appointment in compliance with an employer directive and she was terminated for that action. Based on the totality of the circumstances, the ALJ concluded that the claimant did not commit a volitional act that led to the termination and did not exercise a sufficient degree of control over the circumstances of her termination. In our view, these findings support the conclusion that the respondents had failed to prove that the claimant was at fault for the termination of her employment.
However, the respondents contend that the ALJ's order contains factual errors. The respondents argue that the ALJ erred in finding that the claimant was fired on the morning of March 31, 2009 because Dr. Mardis credibly testified that the claimant was in fact terminated on March 27, 2009. The respondents argue this was not a harmless error because the ALJ found that on March 31, 2009 the claimant had adhered to an employer directive to go to her authorized treating physician and she was terminated for that reason.
There is a conflict in the evidence on the issue of when and under what circumstances the claimant was terminated. The claimant testified that on March 31, 2009 she was terminated by Dr. Rotolo. Tr. at 26 28 38. Dr. Mardis testified that in March of 2009 there was a meeting between partners to discuss the termination of the claimant. Tr. at 63. Dr. Mardis testified that the last day she clocked in was March 25, and so he believed it was the next day or maybe two days later when she didn't come to work that Dr. Rotolo called her and told her that her services were no longer needed. Tr. at 63. The respondents did not present the testimony of Dr. Rotolo and Dr. Mardis was not part of the conversation that supposedly took place between Dr. Rotolo and the claimant on March 27, 2009. Tr. 63. We also noted that the claimant's testimony of when she was terminated is consistent with a check issued by the employer to the claimant dated March 31, 2009 as her last pay check. Exhibit 5.
Because the issue of when the claimant was terminated and the circumstances surrounding the termination are factual in nature, we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8). We are not persuaded that the ALJ was compelled to accept the testimony of Dr. Mardis. We note in this connection the hearsay nature of some of the testimony of Dr. Mardis. In our view the claimant's testimony constitutes substantial evidence supporting the ALJ's findings, and we are unpersuaded to disturb her conclusion that the claimant was not responsible for the termination of her employment.
IT IS THEREFORE ORDERED that the ALJ's order dated February 2, 2010 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Thomas Schrant
____________________________________ CurtAnksiciun
MARIA CASTRO-LUJAN, DENVER, CO, (Claimant).
COMFORT DENTAL — EAST COLFAX, Attn: DR. SANTIAGO MONCAYO, DENVER, CO, (Employer).
FARMERS INSURANCE COMPANY, Attn: WORKERS' COMPENSATION BCO, C/O: GUY EASTON, DENVER, CO, (Insurer).
ELEY, GALLOWAY TRIGG, LLC, Attn: ROBERT N. TRIGG, ESQ., DENVER, CO, (For Claimant).
VARNELL ASSOCIATES, Attn: JOE ESPINOSA, ESQ., DENVER, CO, (For Respondents).