Opinion
W.C. No. 4-313-107
February 11, 1998
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Martinez (ALJ), which awarded temporary disability benefits. We affirm.
The claimant installed controls for heating and air conditioning units. On October 9, 1996, the claimant sustained an injury to his left upper extremity, and was restricted from performing his usual duties. Subsequently, on November 9, 1996, the respondent-employer (Climate Control) offered the claimant modified employment within his restrictions. The claimant accepted this offer and commenced performing the modified work.
On December 20, 1996, the claimant experienced car trouble and failed to report for work. Apparently, the claimant did not notify Climate Control of his difficulties within thirty minutes of the commencement of his shift, but did make notification later in the day.
On December 31, 1996, the claimant again failed to report for work. The ALJ found that the claimant was "too emotionally upset to work" due to a dispute with management concerning the performance of his duties.
On December 31, 1996, Climate Control mailed the claimant a letter stating that Climate Control considered the claimant to have voluntarily terminated his employment due to his failure to appear for work on December 20 and December 31. The letter indicated that the claimant's "last effective working day" was December 30, 1996, and that the claimant could pick up a final paycheck, personal equipment, and return company property after 3:00 p.m. on January 10, 1997. The letter also stated that the claimant should contact Climate Control "as soon as possible."
The ALJ found that Climate Control had provided the claimant with a company policy manual. The manual stated that absenteeism or tardiness would be grounds for disciplinary action "in accordance with the policies described elsewhere in [the] manual." The manual established a four-step disciplinary policy for absenteeism. Level I mandated a verbal warning, Level II mandated a written warning, Level III provided for suspension, and Level IV provided for immediate termination. The claimant had never been warned that his absenteeism was a problem prior to the December 31 letter.
Under these circumstances, the ALJ concluded that the claimant was not at fault for the loss of modified employment. The ALJ reasoned that, because the claimant was never warned about absenteeism in accordance with the policy manual, he "had no expectation that his absences from work would result in termination or that the respondent-employer would construe his absence[s] from work as a voluntary resignation." Since the claimant was not at fault for the termination, the ALJ held that it would be improper to terminate temporary total disability benefits as of December 31.
On review, the respondents contend that the ALJ erred in determining that the claimant was not "at fault" for the separation from employment. The respondents point out that, from Climate Control's perspective, the claimant voluntarily terminated his employment by failing to appear for work. Thus, the respondents reason that the claimant was responsible for the separation and is not entitled to benefits under PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995). We find no error.
We have previously addressed the proper standard for determining whether the claimant may be considered at fault for the loss of post-injury employment. See DeBias v. McCool's Custom Painting Co., W.C. No. 4-198-995 (October 10, 1995). In DeBias, we stated the following:
"In Padilla v. Digital Equipment Corp., 902 P.2d 414 (Colo.App. 1994), 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.' The court went on to state that determinations of fault turn `on the specific facts of any given separation from employment,' and the `concept of fault and its volitional nature in the unemployment insurance context is illustrative and instructive.'
We recognize that, on September 25, 1995, our Supreme Court vacated the judgment of the Court of Appeals in Padilla v. Digital Equipment Corp., and remanded the case to the Court of Appeals for reconsideration in light of PDM Molding, Inc. v. Stanberg [citation omitted]. In PDM Molding, the Supreme Court declined to address the definition of `fault' adopted by the Court of Appeals in Padilla. PDM Molding, Inc. v. Stanberg, 898 P.2d at 547 n. 4. Consequently, we do not understand the Supreme Court as having disapproved the definition of fault adopted by the Court of Appeals in Padilla. Rather, the Supreme Court appears to have determined that, regardless of the issue of fault, the Court of Appeals must evaluate whether the claimant's wage loss, subsequent to his separation, was causally connected to the injury. Therefore, we consider Padilla to remain persuasive authority with respect to the definition of `fault.'"
In the unemployment insurance context, our courts have held that an employer's failure to follow a stepped disciplinary policy in discharging a claimant is a factual circumstance which may be considered in determining whether the claimant's separation was "volitional." See Keil v. Industrial Claim Appeals Office, 847 P.2d 235 (Colo.App. 1993); Hospital Shared Services v. Industrial Commission, 677 P.2d 447 (Colo.App. 1984). Thus, insofar as the respondents contend that it was improper for the ALJ to consider the effect of the policy manual on the claimant's conduct, we disagree.
Moreover, since the question of whether the claimant's conduct was volitional is one of fact, we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1997. In applying this standard of review, we are obliged to defer to the ALJ's resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences which he drew from the evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
The respondents' argument notwithstanding, the evidence fully supports the ALJ's determination that the claimant was not at fault for the separation from employment. Here, the evidence establishes that the claimant was unaware that his absences on December 20 and December 31 would place his employment in jeopardy. As the ALJ found, the claimant's state of mind was justified because Climate Control created a stepped disciplinary procedure which, under ordinary circumstances, would have notified the claimant that his absences were jeopardizing his employment. Under these circumstances, we decline the respondents' invitation to substitute our judgment for that of the ALJ concerning the inferences to be drawn from the evidence.
The respondents have also asserted the ALJ's order is erroneous because the December 31 letter described the claimant's separation as a "voluntary termination," and because the claimant failed to contact Climate Control after receiving the letter. However, Climate Control's opinion concerning the reason for the claimant's separation is not dispositive of the issue of whether the separation was volitional. See Gonzales v. Industrial Commission, 740 P.2d 999 (Colo. 1987). Further, the ALJ was not required to place any weight on the claimant's failure to contact Climate Control after December 31 since the ALJ found that the claimant was already terminated by the letter. In light of this disposition, we need not consider the claimant's argument that, even if he was at fault, the post-separation wage loss was "to some degree" caused by the injury.
IT IS THEREFORE ORDERED that the ALJ's order dated August 6, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL __________________________________ David Cain __________________________________ Bill WhitacreNOTICE
This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. 1997.
Copies of this decision were mailed February 11, 1998 to the following parties:
Steve A. Mihalovic, 557 Cindy Ann Rd., Grand Junction, CO 81501
Climate Control of Glenwood Springs, P. O. Box 1042, Glenwood Springs, CO 81602-1042
Laurie A. Schoder, Esq., Colorado Compensation Insurance Authority — Interagency Mail
M. Frances McCracken, Esq., 562 White Ave., Grand Junction, CO 81501 (For Claimant)
Kendra Oyen, Esq., 744 Horizon Ct., #360, Grand Junction, CO 81506 (For Respondents)
By: _______________________________