Opinion
W.C. No. 4-563-722.
August 12, 2004.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Friend (ALJ) which denied their request to terminate temporary disability benefits effective October 11, 2002. We affirm.
The claimant was assigned modified employment as a result of an admitted injury in September 2002. After work on October 10, 2002, the claimant was arrested and incarcerated. The employer terminated the claimant's employment on October 11, 2002.
On December 18, 2002, the respondents admitted liability for temporary disability benefits for the period September 4, 2002 to October 9, 2002, and commencing again November 25, 2002, the date the claimant was released from jail. However, the respondents subsequently petitioned to terminate temporary disability benefits effective October 11, 2002, by operation of § 8-42-105(4), C.R.S. 2003.
The employer has a personnel policy that "any [employee] who is absent from work for 1-day and has no reasonable excuse for not notifying the Company, will be presumed to have resigned." (Respondents' Hearing Exhibit D). The ALJ determined the employer terminated the claimant's employment on October 11 based on their belief the claimant did not provide notification he would be absent October 11. However, the ALJ found the employer's belief was mistaken because the claimant's mother notified the employer on October 11 that the claimant had been arrested and incarcerated. Therefore, the ALJ determined the respondents failed to prove the claimant was "responsible" for the termination for purposes of terminating benefits under § 8-42-105(4).
On review the respondents contend the ALJ erroneously found that the employer's failure to comply with its own personnel policy was dispositive of whether the claimant was responsible for the termination of employment. The respondents also argue that because the claimant's volitional actions caused his incarceration and the claimant could not continue return to work during the incarceration the claimant was necessarily responsible for the termination of employment. We are not persuaded.
Initially we note that the respondents' Petition to Review designates a "certified file from the Division of Workers' Compensation" as part of the record on review. The record transmitted to us on appeal apparently does not include a certified copy of the Division of Workers' Compensation file. Further, our review is limited to the evidentiary record before the ALJ, and there is no evidence in the record which tends to suggest the respondents requested the ALJ consider a certified copy of the Division of Workers' Compensation file as part of the evidentiary record for the hearing. See City of Boulder v. Dinsmore, 902 P.2d 925 (Colo.App. 1995); Rules of Procedure, Part VIII(A)(6), 7 Code Colo. Reg. 1101-3 at 22. Consequently, we have not obtained or considered the Division of Workers' Compensation file, but restricted our review to the record made at the hearing.
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. 2003. If the claimant establishes his initial entitlement to temporary disability benefits, then continuing benefits are due unless the respondents establish grounds for the termination of benefits. Burns v. Robinson Dairy, Inc., 911 P.2d 661 (Colo.App. 1995).
Section 8-42-105(4) and identical language in § 8-42-103(1)(g), C.R.S. 2003 (termination statutes) provide 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 held that the term responsible "appears to introduce into the 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.App. 1995). Under this standard, the "fault" determination depends on whether the claimant performed some volitional act or otherwise exercised a degree of control over the circumstances resulting in the termination. See Padilla v. Digital Equipment Corp., 902 P.2d 414, 416 (Colo.App. 1994), opinion after remand, 908 P.2d 1185 (Colo.App. 1995); Pace v. Commercial Design Engineering, W.C. No. 4-451-277 (May 15, 2001).
Because the termination statutes reduce the respondents' liability for temporary disability benefits, the statute is an affirmative defense. See Johnson v. Industrial Commission, 761 P.2d 1140 (Colo. 1988). Therefore, it was the respondents' burden to prove the claimant caused the termination of employment. See White-Skunk v. QK, Inc., W.C. No. 4-500-149 (October 3, 2002); Gehrig v. Danella Construction, W.C. No. 4-470-914(August 1, 2001).
Whether the respondents sustained their burden of proof was a question of fact for resolution by the ALJ, which required the ALJ to evaluate competing factual theories concerning the actual reason or reasons for the termination. See Eckart v. Industrial Claim Appeals Office, 775 P.2d 97 (Colo.App. 1989). Because the pertinent issue was factual in nature, we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2003. This standard requires us to review the evidence in the light most favorable to the prevailing party, and accept the ALJ's resolution of conflicts in the evidence, as well as the plausible inferences which he drew from the evidence. 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 argued by the respondents, we have previously held that evidence the employer discharged the claimant in accordance with the employer's policy does not establish that the claimant acted volitionally or exercised control over the circumstances of the termination. See Gonzales v. Industrial Commission, 740 P.2d 999 (Colo. 1987); Pace v. Commercial Design Engineering, W.C. No. 4-451-277 (May 15, 2001). However, we know of no authority that an ALJ may not consider the employer's failure to discharge a claimant in accordance with its personnel policies in determining whether the claimant exercised control over the termination. Thus, we reject the respondents' contention that evidence the employer discharged the employee for a non-existent personnel violation may not be dispositive of whether the claimant volitionally caused the discharge.
Here, the respondents expressly asserted before the ALJ that the claimant was discharged for violating a personnel policy. The respondents' Petition to Suspend dated June 25, 2003, alleged the claimant's employment was terminated for failing to call in or show up for work for 3 days beginning October 9, 2002. The claimant's former supervisor testified that the claimant was fired for failing to call in or show up for work on 3 days, specifically October 8, 9 and 10 (Tr. pp. 11, 40). However, the claimant' former supervisor later admitted there was no 3 day no call/no show policy and only a one day no call policy. (Tr. p. 18.). Thus, the respondents may not now complain that the ALJ erroneously focused on whether the termination was prompted by a personnel policy violation. Cf. Dalco Industries, Inc. v. Garcia, 867 P.2d 156 (Colo.App. 1993); Jacobs v. Commonwealth Highland Theatres, Inc., 738 P.2d 6 (Colo.App. 1986).
Insofar as the employer alleged the claimant was fired for failing to provide a reasonable excuse for his absence on October 11, the former supervisor stated that the claimant had been suspended from work before October 11. (Tr. p. 16). This testimony is consistent with the employer's termination notice which stated the claimant was "under suspension" at the time of the termination. We agree with the ALJ that if true, this evidence supports a finding the employer was on notice why the claimant was not at work on October 11, and therefore, the absence did not violate the employer's notice policy.
However, the record amply supports the ALJ's determination that the claimant was at work through October 10, 2002. Indeed the employer's termination notice (Respondents' Hearing Exhibit 9) states the claimant's last day of work was October 10, 2002. Furthermore, the testimony of the claimant's mother contains evidence she called the employer on October 11 and told the employer why the claimant would not be to work. Under these circumstances, the ALJ reasonably inferred that the October 11 termination was the result of the employer's mistaken belief that the claimant had violated a personnel policy without any actual violation by the claimant as of October 11.
The ALJ's findings also support his determination that the respondents failed to prove the termination of employment was precipitated by the claimant's arrest. Therefore, the ALJ did not err in denying the Petition to Suspend. Moreover, because the record supports the ALJ's finding that the employer failed to prove the termination was precipitated by the claimant's volitional actions it is immaterial whether the claimant's subsequent incarceration prohibited him from continuing the employment.
In view of our disposition we need not consider the respondents' request for retroactive relief from the General Admission of liability for temporary disability benefits.
IT IS THEREFORE ORDERED that the ALJ's order dated, March 25, 2004, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Robert M. Socolofsky
Walter Martinez, Loveland, CO, Vista Ridge, Erie, CO, Pacific Indemnity Company, c/o Michael Wozny, Chubb Services, Itasca, IL, Darrin Stone, Troongolf, Scottsdale, AZ, Janet Frickey, Esq., Lakewood, CO, for Claimant.
Cindy Slevin, Esq. and Dawn Watts, Esq., Denver, CO, for Respondents.