Opinion
W.C. No. 4-700-819.
November 16, 2007.
ORDER OF REMAND
The respondents seek review of an order of Administrative Law Judge Friend (ALJ) dated May 30, 2007, that determined the claimant was not responsible for the termination of his employment and that ordered the respondents to pay temporary total disability benefits. We set aside the decision and remand the matter for further proceedings.
The ALJ's pertinent findings of fact are as follows. The claimant sustained a compensable injury on September 25, 2006, and because his authorized treating physician restricted his physical activities, he was not able to perform the usual duties of his job. The employer offered modified employment and the claimant returned to work. The claimant's modified employment was in the offices of the employer and pursuant to their policy, the employer performed a background check of the claimant. The background check showed that the claimant had pleaded guilty to third degree assault and driving while under the influence (DUI). The employment application with the employer asked if he had ever pleaded guilty to any criminal offense including DUI. The claimant checked the box "No". The claimant was in a hurry when he filled out the application and thought that the employment application referred only to felony convictions. The claimant did not intend to deceive the employer. The employer terminated the claimant's employment based on the discrepancy between the information the claimant gave on his employment application and the results of the background check.
The ALJ found that the claimant acted negligently when he was in a hurry and failed to read carefully the question on the application. However, the ALJ further found that the claimant's negligent actions did not constitute volitional conduct and that the claimant did not otherwise exercise a degree of control over the circumstances resulting in his termination. The ALJ concluded the claimant was not responsible for the termination of his employment and found that the insurer was liable for temporary total disability benefits.
On appeal, the respondents contend that the findings of fact do not support the order. The respondents argue that the ALJ erred in reasoning that because the claimant did not intend to deceive the employer that the claimant's conduct of negligently filling out the application was not volitional. Citing Casias v. Industrial Commission 38 Colo. App. 261, 554 P.2d 1357(Colo.App. 1976), the respondents argue that the burden is not on the employer to show that misrepresentations on an employment application are intentional. Because we are unable to ascertain from the ALJ's order whether he applied the correct legal standard, it is necessary to remand the matter for additional findings and conclusions.
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. Kauffman v. Noffsinger Manufacturing, W. C. No. 4-608-836 (April 18, 2005). 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).
The claimant argues that the employer terminated him for dishonesty and that the evidence only supported a finding of inadvertence rather than intentional deception. The claimant further argues that the ALJ's consideration of his state of mind was relevant to the termination issue because he did not intend to deceive the employer and so did not act "volitionally."
However, in the context of the law of unemployment benefits, a "volitional act" does not require willful intent. Rather, the claimant need only exercise some degree of control or choice in the circumstances such that the claimant can be said to be responsible for the separation. See Richards v. Winter Park Recreational Association, 919 P.2d 933 (Colo.App. 1996). In Richards the court of appeals held that neither statutory nor case law has imposed a state of mind requirement that a claimant must act with "willful intent" before a determination of fault may be made. To the contrary, the court noted that "fault" is not necessarily related to culpability, but only requires a volitional act or the exercise of some control or choice in the circumstances leading to the discharge from employment. In Richards, the court of appeals ruled that a claimant who forgot to perform a job task was at fault for his termination, even though he had not "willfully" failed to perform the task.
Here the ALJ found that the employer terminated the claimant's employment because of the discrepancy between the information the claimant provided on his employment application and the results of the background check. Findings of Fact, Conclusions of Law, and Order (Order) at 3, ¶ 7. The ALJ also concluded that the claimant merely acted negligently when he failed to read the question carefully on the application, and that his employment was terminated because he had not disclosed his convictions. Order at 3, ¶ 5. He further concluded that the claimant had no intent to deceive the employer and did not perform any volitional act or otherwise exercise a degree of control over the circumstances resulting in the termination. Order at 3, ¶ 5. Therefore, the ALJ concluded that the claimant was not responsible for the termination of his employment.
Although the ALJ found the claimant did not act volitionally in failing to disclose his assault and DUI convictions, his evidentiary findings do not necessarily support the conclusion that the claimant's negligent failure to disclose these convictions was outside his control. Richards v. Winter Park Recreational Association, supra. The issue is whether the claimant acted volitionally rather than intentionally. In our view, the claimant's negligent failure to disclose the information that created the discrepancy could support a determination that the claimant was nonetheless responsible for the termination of employment. That is because a mere finding of negligence on the claimant's part is not sufficient by itself under the termination statutes to support the conclusion that the claimant was not responsible for the termination of his employment. Notwithstanding the claimant's negligence, the question remains whether he exercised control over the circumstances of the termination. As in Richards, where the claimant forgot to perform a safety check, a finding of negligence is fully consistent with a corresponding finding that the claimant exercised control over the circumstances of his termination.
It follows from Richards that the cause of the claimant's termination is dispositive. Here, it is unclear whether the ALJ determined that the employer discharged the claimant for his intentional falsification of the application or because of the claimant's negligence in creating the discrepancy between the information on his employment application and the results of the background check. In this regard the ALJ found both that the claimant was discharged "based on the discrepancy," and "because he had not disclosed his assault and DUI conviction." Order at 3, ¶¶ 7, 5. These findings are susceptible of different interpretations and it is not clear whether the ALJ found that the claimant was discharged because he acted intentionally or because the information on the application was merely inaccurate. Moreover, the evidence in the record is also susceptible of conflicting inferences. At times during the hearing, the employer appeared to be alleging that the claimant acted intentionally by falsifying his application. See e.g., Tr. at 41, 43. At another point, the employer's risk operations manager testified that the claimant was terminated based on the inconsistency of the information of his application and his background check. Tr. at 45. This evidentiary conflict must be resolved in order to determine the claimant's entitlement to temporary total disability benefits.
As noted, the reason for the discharge is dispositive. If, on the one hand, the employer discharged the claimant because the claimant "intentionally" falsified his application, then the question of the claimant's mental state is clearly relevant to whether he performed a volitional act, which then caused the termination. Therefore, where the discharge was caused by the claimant's intentional falsification of his application, the ALJ's consideration of his state of mind would be relevant because the termination would have resulted from the employer's incorrect belief that the claimant had acted dishonestly. The claimant, having acted with no intention to deceive, would not be at fault for the termination because he exercised no control over the circumstances resulting in his termination, which was the employer's false understanding of the claimant's motives. Under those circumstances, because the claimant did not commit the misconduct that resulted in his discharge, he would not have acted "volitionally." See Frontier Airlines v. Industrial Commission, 719 P.2d 739 (Colo.App. 1986) (unforeseen circumstances prevented claimant from working an entire shift after he turned in time card reporting that he had worked entire shift).
If, however, the reason for the claimant's discharge was merely the discrepancy between the information on the application and the true state of facts, then under Richards the claimant's state of mind is not dispositive of whether he exercised control over the circumstances of his termination.
We cannot ascertain from the ALJ's order whether he found that the claimant's discharge was caused by his intentional falsification of the application or merely by the discrepancy in information. It is therefore necessary to remand the matter for clarification of that issue. On remand the ALJ should enter findings concerning whether the employer discharged the claimant because the employer believed the claimant had intentionally falsified his application or because of the mere existence of the discrepancy, created by the claimant's negligence. On remand, the ALJ shall find the specific reason for the claimant's separation from employment, and shall then make findings necessary to determine whether the claimant was at fault for the separation, in accordance with the legal principles described above. Based thereon, the ALJ shall make a new determination of the claimant's entitlement to benefits.
IT IS THEREFORE ORDERED that the ALJ's order dated May 30, 2007 is set aside, and the matter is remanded for additional findings and a new determination of the claimant's entitlement to benefits, consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksciun
____________________________________ Thomas Schrant
CHARLES ELLIOTT, 255 SW 12TH AVENUE, CEDAREDGE, CO, (Claimant)
HIRE CALLING HOLDING COMPANY, Attn: ERIN URBAN/MARGARET STOCKING, C/O: SOS STAFFING SERVICES, INC., SALT LAKE CITY, UT, (Employer)
INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA, Attn: DEBBIE BUTLER, C/O: ESIS PORTLAND WC CLAIMS, P O BOX 31082, TAMPA, FL, (Insurer)
WITHERS SEIDMAN RICE MUELLER P.C., Attn: CHRISTOPHER SEIDMAN, ESQ., GRAND JUNCTION, CO, (For Claimant)
CLIFTON, MUELLER BOVARNICK, P.C., Attn: CHERYL A. MARTIN, ESQ., GRAND JUNCTION, CO, (For Respondents)