Adamson v. MNM Plumbing, W.C. 4-918-584-01 (ICAO June 3, 2014)
The claimant had returned to work after being off for about 6 weeks as a result of his on-the-job injury. One morning the Claimant was late for work because he had trouble sleeping the night before. The cause of the insomnia was taking pain medications for his injury and feeling sick. The Claimant sent his wife to pick up a co-employee to whom he gave a ride to work. The wife testified that when she returned with the co-employee, the claimant’s car was running and ready to go. However, the co-employee testified that the claimant had him breathe into the car’s breathalyzer to start the car, insinuating that the claimant was intoxicated.
The job that the claimant was sent to do was delayed because the claimant did not have the correct parts. He had to go to Home Depot to get the parts; and thus, the job took longer than it normally would have. The employer terminated the claimant the next day, telling him that he was being fired because his jobs were taking too long and because he was late for work the previous day. The claimant was later put on work restrictions by the treating physician but the respondents denied payment of temporary benefits under §8-42-103(g) and §8-42-105(4). Both statues provide that when a worker is terminated for cause, the subsequent wage loss shall not be attributed to the injury; and thus, temporary benefits would not be owed.
The ALJ determined that the claimant was fired for being late, but that this was not the result of the claimant’s volitional conduct. It was found by the ALJ that the tardiness was a result of a “series of misadventures” beyond the control of the claimant. He concluded that the claimant was not responsible for his termination for purposes of §8-42-103 and §8-42-105(4).
The respondents argued on appeal that the claimant was not terminated solely for being late but also for having the co-employee breathe into the car’s breathalyzer, leading to speculation that he was intoxicated. The ICAO ruled that it is within the ALJ’s purview to make findings on the cause of an employee’s termination, Gilmore v. Industrial Claim Appeals Office, 187 P.3d 1129 (Colo. 2008), and that in this case, the cause was found to be the claimant being late for work. While the ALJ could have made other findings regarding the cause of the firing, he did not and the findings that were made would not be disturbed on appeal. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Coo. App. 2003).
The fact that the claimant’s lack of sleep was caused, at least indirectly, by his on-the-job injury is probably important to the ALJ’s findings regarding volition. If the claimant’s sleeping in had been found to be caused by staying up too late or by partying, it is probable that the tardiness and subsequent termination would have been found to be volitional, making the claimant ineligible for temporary benefits, regardless of subsequent restrictions.
This was a fact specific case, but the takeaway is that the action that causes termination must be volitional on the part of the worker, that the respondents have the burden to prove volition, and that findings by the ALJ on that issue, when supported by evidence in the record, will not be overturned on appeal.