The City and County of Denver, Petitioner,
v.
Industrial Commission of
the State of Colorado,
and Pamela Kay Ortega,
Respondents.
No. 86SC252.
756 P.2d 373
Supreme
Court of Colorado,
En Banc.
May 16, 1988.
Stephen H. Kaplan, City Atty., Geoffrey S. Wasson, Asst. City
Atty., Denver, for petitioner.
Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty.
Gen., Richard H. Forman, Sol. Gen., Mary Ann Whiteside, First Asst.
Atty. Gen., Denver, for respondent Indus. Comn.
Law Firm of Leonard M. Chesler, Earl S. Wylder, Rodney Allison,
Denver, for respondent Pamela Kay Ortega.
VOLLACK, Justice.
The City and County of Denver petitioned this court requesting
certiorari review of City & County of Denver v. Industrial
Commission, 725 P.2d 89 (Colo.App.1986). In that case, the court
of appeals affirmed the Industrial Commission's holding that the
respondent, Pamela Ortega, was entitled to a full award of
unemployment compensation benefits after her employment with the
City and County of Denver was terminated because she was unable to
perform her job due to her alcoholism. We reverse the court of
appeals' affirmance of the Industrial Commission's order and remand
for further proceedings consistent with this opinion.
I.
Pamela Ortega (Ortega or the claimant), began working for the
City and County of Denver (the City) in 1975 as a recreation leader
and lifeguard at Washington Park Recreation Center. On a number of
days in March 1982, Ortega reported for work in an intoxicated
condition. On March 30, 1982, she was given a "Written Reprimand"
for reporting to work smelling of alcohol. The reprimand stated that
because Ortega worked as a lifeguard, she was jeopardizing the
safety of swimmers at the recreation center, as well as her own
safety, due to her "impaired performance because of drinking before
coming to work." The reprimand warned Ortega that "a repeat of this
incident will warrant an immediate dismissal."
On April 28, 1982, she received a written "final warning"
document from the Department of Recreation, advising her that
despite the March 30 reprimand she had reported to work "since that
date smelling of alcohol." Ortega eventually admitted that she had
an alcohol problem and the City requested that she enroll in a
monitored Antabuse1 program at Denver General Hospital (DGH).
The City again stressed its concern that Ortega was endangering the
lives of herself and others at the swimming facility. After
participating in the Antabuse program for "[a]pproximately seven to
ten days," she was permitted to withdraw from the program because
she complained that the Antabuse made her ill.
Two years later, on March 14, 1984, Ortega again reported to work
in an intoxicated condition. When confronted by her supervisor, she
admitted that she had been drinking. The City gave Ortega the choice
to either be terminated immediately, or to reenroll in the monitored
Antabuse program. Ortega chose the latter, and in April 1984 entered
into a Stipulation and Agreement with the City by which she agreed
to participate in the Antabuse program under conditions established
by DGH's Employees Medical Clinic. She agreed to participate in the
program for the remainder of her employment or for a period of at
least twelve months. The stipulation also provided that her failure
to attend the program "may result in her dismissal," and that if she
appeared on duty while under the influence of alcohol she would be
immediately dismissed. The stipulation was signed by the parties on
April 13, 1984.
Less than a month later, on May 9, 1984, Ortega again reported to
work while under the influence of alcohol. This time she denied that
she had been drinking, so her employer sent her to Denver General
Hospital where a blood alcohol test confirmed that she was under the
influence of alcohol.2 In a letter dated May 11, 1984, Ortega
was notified of the termination of her employment, effective May 14,
1984, for violation of Career Service Authority Personnel Rule
16-22.
Ortega filed a claim for unemployment insurance benefits with the
Colorado Department of Labor and Employment, Division of Employment
and Training (Division). A Division deputy determined that the
claimant was responsible for her discharge due to "[o]ff-the-job use
of not medically prescribed intoxicating beverages or narcotics to a
degree resulting in interference with job performance." Sec.
8-73-108(9)(a)(VIII), 3 C.R.S. (1983 Supp.). Her unemployment
compensation benefits were reduced under this provision of the
statute.
The claimant appealed and a hearing was held before a Division
referee. The referee found "no dispute between the claimant and the
employer as to the facts which led up to the claimant's separation
from employment." The only dispute was whether Ortega was at fault
for her alcoholism or whether, as she contends, she suffered from
"the disease of alcoholism" and therefore could not be held at
fault. The referee held that "her alcoholism was such that, despite
taking Antabuse treatment, the claimant could not refrain from
ingesting alcohol, [therefore] ... [t]he referee simply has to
conclude that the claimant was, in fact, suffering from an illness
over which she had no control." (Emphasis added). This ruling made
Ortega eligible for full unemployment compensation benefits.
The City appealed the referee's award of benefits to the
Industrial Commission (Commission). The Commission affirmed, holding
that the referee's findings of fact and conclusions of law were
"supported by competent and substantial evidence" and "made in
accordance with the law."
The City appealed the Commission's decision to the court of
appeals. In City & County of Denver v. Industrial Commission,
725 P.2d 89 (Colo.App.1986), the court of appeals affirmed the
Commission's holding in a two-one decision, Judge Pierce dissenting.
Id. at 92. The City filed a petition for writ of certiorari
which we granted to decide this issue: Whether Ortega should be
disqualified from unemployment compensation benefits because she was
discharged from her employment after repeatedly appearing for work
in an intoxicated condition.
II.
A.
The claimant was terminated for violation of this Career Service
Authority Personnel Rule:
16-22 Causes for Immediate Dismissal.
. . . .
3) Being under the influence of alcohol while on duty.
. . . .
5) Lying to superiors or falsifying records with respect of
official duties.
. . . .
20) Any other act of dishonesty, gross misconduct, or neglect not
listed specifically above.
The Division originally denied Ortega's claim based on its
application of section 8-73-108(9)(a)(VIII), 3 C.R.S. (1983 Supp.),3 which states that a worker is disqualified from receiving
unemployment compensation benefits for a certain period of time if
the worker engages in off-the-job use of intoxicating beverages
which are not medically prescribed and which affects the worker's
job performance.4 The referee disagreed with both the deputy's
application of 108(9)(a)(VIII) and the result reached. The referee
instead applied two subsections of section 8-73-108(4), and held
that Ortega was entitled to benefits.
Section 8-73-108(4)(b) provides for a full award of unemployment
compensation benefits, under certain circumstances, when a worker
leaves employment due to a health problem.5 Subsection 4(j)
provides for a full award of benefits if the worker has been
separated from a job for "[b]eing physically or mentally unable to
perform the work."6 The Commission adopted the referee's
findings and conclusions.
The court of appeals affirmed the Commission's order, reconciling
the different provisions of the statute in this manner:
[T]here was evidence to support the
application of Sec. 8-73-108(5)(e)(VIII). However, there was
also evidence to support the application of Sec.
8-73-108(4)(j). Since each subparagraph of Sec. 8-73-108(4)
is an independent criterion for determining benefits, and
the Commission's decision to apply Sec. 8-73-108(4)(j) was
supported by substantial evidence, that decision will not be
disturbed on review.
City & County of Denver, 725 P.2d at 91.
Our resolution of this dispute under the Colorado Employment
Security Act depends on whether a worker's conduct which results
from his or her alcoholism is volitional or nonvolitional. As framed
by Judge Pierce in his dissent, "[t]he critical question raised here
... is what degree of legal responsibility should be imposed upon
persons who are alcoholics, and under what circumstances, if any,
should alcoholics receive unemployment benefits." Id. at 92.
B.
"It is the reason for separation that determines which statutory
section applies." Kortz v. Industrial Comm'n, 38 Colo.App.
411, 413, 557 P.2d 842, 843 (1976) (emphasis added). "[T]he reason
for termination is a question of fact." Mountain States Tel. &
Tel. Co. v. Industrial Comm'n, 697 P.2d 418, 420
(Colo.App.1985). The express intent of the General Assembly in
granting benefit awards is "that the division at all times be guided
by the principle that unemployment insurance is for the benefit of
persons unemployed through no fault of their own." Sec.
8-73-108(1)(a), 3B C.R.S. (1986) (emphasis added). "[T]he concept of
'fault' under the statute is not necessarily related to culpability,
but must be construed as requiring a volitional act." Zelingers
v. Industrial Comm'n, 679 P.2d 608, 609 (Colo.App.1984). The
question then becomes whether misconduct resulting from alcoholism
constitutes a volitional act which disqualifies a claimant from
eligibility for unemployment compensation benefits, or a
nonvolitional act which is through no fault of the worker.
"Conduct induced by alcoholism may or may not be voluntary in the
law, depending upon the degree of impairment caused by the
alcoholism. The degree of impairment must be determined under the
facts of each case." Huntoon v. Iowa Dep't of Job Serv., 275
N.W.2d 445, 448 (Iowa 1979), cert. denied, 444 U.S. 852, 100 S.Ct.
105, 62 L.Ed.2d 68 (1979).
Other jurisdictions have used this or a similar approach.7
See Jacobs v. California Unemployment Ins. Appeals Bd., 25
Cal.App.3d 1035, 1038, 102 Cal.Rptr. 364, 366 (1972) ("To describe
alcoholism as a 'disease' may be meaningful in one legal context,
misleading in another. To label the individual an 'alcoholic' may
shield him from one kind of legal responsibility but not another.");
Craighead v. Administrator Dep't of Employment Sec., 420
So.2d 688, 689 (La.App.2nd Cir.), aff'd on rehearing, 420 So.2d 690
(1982) (en banc) ("[W]here an employee's impairment resulting from
alcoholism is of a sufficient degree to deprive the individual of
his ability to abstain from the use of alcohol thus resulting in an
intoxication-caused work lapse, the individual's absence or
misconduct cannot be said to be voluntary and, therefore, cannot
constitute grounds for disqualification from unemployment
compensation benefits."); Moeller v. Minnesota Dep't of Transp.,
281 N.W.2d 879, 882 (Minn.1979) (Behavior resulting from alcoholism
does not constitute "misconduct" for purposes of unemployment
benefits if the employee made "a reasonable effort to retain his
employment. Given the nature of the disease, it is unreasonable to
require the employee to maintain total abstinence even after he
enters treatment." (emphasis in original)); Federoff v. Rutledge,
332 S.E.2d 855, 861 (W.Va.1985) ("The afflicted employee must assume
the responsibility of dealing with this problem--or face the
consequences of failing to do so, including discharge and possible
disqualification for unemployment compensation.... Refusal to
undertake and pursue rehabilitative treatment for chronic
alcoholism, therefore, may also place one's eligibility for
continued benefits in question."); see also Huntoon, 275
N.W.2d at 448 ("It is only when the impairment is sufficient to
deprive the individual of the ability to abstain from the
intoxication-caused work lapse that the individual does not incur
the disqualification for misconduct.").
When a claimant's alcoholism has advanced to the stage that the
alcoholic is unable to abstain from drinking, the claimant's conduct
may be considered nonvolitional and disqualification from benefits
is not required. In contrast, when a claimant's alcoholism is such
that the alcoholic is able to choose or decide whether to drink
alcoholic beverages, the act of drinking is characterized as
volitional. Because fault under the statute requires "a volitional
act," this misconduct constitutes fault. Zelingers, 679 P.2d
at 609. The degree of impairment and the volitional or nonvolitional
nature of a claimant's alcoholism can only be determined under the
particular facts of each case. "At a minimum, the claimant must have
performed some volitional act or have exercised some control over
the circumstance resulting in the discharge from employment."
Gonzales v. Industrial Comm'n, 740 P.2d 999, 1003 (Colo.1987)
(applying Sec. 8-73-108(5)(e)(XX) to a claimant who was terminated
for violating the employer's disciplinary guidelines).
We do not characterize "off-the-job" drinking under section
8-73-108(9)(a)(VIII) as strictly volitional. Nor do we classify
alcoholism as a disease or health problem which is inherently or by
definition nonvolitional. To do either would be irrelevant: "To
label the individual an 'alcoholic' may shield him from one kind of
legal responsibility but not another." Jacobs, 25 Cal.App.3d
at 1038, 102 Cal.Rptr. at 366. The disease classification is not
necessary to nor dispositive of the issue before us.8 Rather,
the degree and nature of a particular claimant's alcoholism must be
determined on an individual basis in each case. In this way, the
agency can learn whether a claimant's drinking of alcoholic
beverages and resulting misconduct were involuntary, or whether a
claimant could have refrained from becoming intoxicated but elected
not to do so.
A number of jurisdictions use this volitional/nonvolitional
approach.9 See, e.g., Mooney v. Commonwealth, 39
Pa.Commw. 404, 395 A.2d 675 (1978), aff'd, 487 Pa. 448, 409 A.2d 854
(1980) (per curiam). ("[A]s the Board found, claimant knew that the
only cure for his disease was to completely abstain from alcohol,
yet he nevertheless 'decided' to take that first drink. Claimant
must now bear the responsibility for that decision." Id. at 408, 395
A.2d at 677.). Another aspect of this issue which demonstrates the
need for a case-by-case determination of voluntary and involuntary
behavior is that "[t]he mere fact that a person suffers from a
disease does not necessarily mean that he or she has no control over
the progress of the disease. One can, for example, seek appropriate
help and treatment and avoid activities known to aggravate the
problem." Id. at 407 n. 1, 395 A.2d at 676 n. 1.
In this case, if Ortega was unable to refrain from ingesting
alcohol, her inability to perform her job was not the product of a
volitional act. On the other hand, if she was able to control or
curb her drinking, by whatever means, then her behavior was
volitional; such a finding would limit her right to receive
unemployment compensation benefits.
C.
The initial burden of proof is always on a claimant to establish
a prima facie case of eligibility for unemployment compensation
benefits. Duenas-Rodriguez v. Industrial Comm'n, 199 Colo.
95, 97, 606 P.2d 437, 438 (1980); Arvada v. Industrial Comm'n,
701 P.2d 623, 624 (Colo.App.1985). If the claimant presents a prima
facie case for eligibility and the employer contests "an otherwise
eligible claimant's right to benefits on the grounds that the
claimant was discharged for misconduct," the employer then has the
burden to make a prima facie showing to the contrary. Arvada,
701 P.2d at 624; Denver Symphony Ass'n v. Industrial Comm'n,
34 Colo.App. 343, 347, 526 P.2d 685, 687 (1974). If the employer
meets this burden, the claimant is entitled to present evidence "to
justify the acts which led to the discharge." Arvada, 701
P.2d at 624-25.
Here, Ortega would be required to make a prima facie showing of
her eligibility for benefits, i.e., a showing that her behavior
directly resulted from alcoholism that was, for her, nonvolitional.
If she meets this burden, then the City has the opportunity to
establish that Ortega's alcoholism was a matter of choice on her
part. See, e.g., Durst Buster Brown v. Commonwealth, 56
Pa.Commw. 135, 140-41, 424 A.2d 580, 583 (1981) (The order granting
unemployment benefits is reversed because "the record affords no
competent basis for concluding that the claimant could not control
his behavior.") Ortega may then present evidence "to justify the
acts which led to the discharge." Arvada, 701 P.2d at 625.
"[A]n Industrial Commission decision must be set aside if the
findings of fact do not support the decision or if the decision is
erroneous as a matter of law." Gonzales, 740 P.2d at 1001;
see Sec. 8-74-107(6)(c), 3B C.R.S. (1986) ("The Industrial Claim
Appeals Panel's decision may be set aside only upon the following
grounds: (c) That the findings of fact do not support the
decision.").
The record in this case establishes that at the hearing before
the Division Referee, a physician with DGH who had treated Ortega
when she was in the Antabuse program testified that he met with her
a few times and administered the Antabuse medication. He stated that
the hospital's determination that she had a blood alcohol content of
.206 was an indication that her responses and judgment would be
impaired. The physician testified that Ortega came to the clinic as
scheduled "[s]even times." Ortega's counsel asked the doctor if her
alcoholism was "beyond her control," but this question was never
answered. The doctor's records showed that he advised Ortega to get
counseling in addition to the Antabuse treatment; she agreed that
she would.
When Ortega testified, no testimony was elicited regarding the
volitional or nonvolitional nature of her drinking although she did
admit that she drank alcoholic beverages during both periods of time
when she was on Antabuse.
A psychologist who had consulted with Ortega twice and conducted
psychological interviews and screening tests also testified. He
testified that she suffered from chronic alcoholism and was
participating in Alcoholics Anonymous, but that she also needed
additional one-to-one psychotherapy. Both professionals who
testified at the hearing agreed that Antabuse alone is not a cure
for alcoholism, and is not intended to be.
There are not sufficient facts in the record about Ortega's
ability to control her drinking for us to ascertain the volitional
or nonvolitional nature of Ortega's alcoholism. First, the referee
entered an ambiguous holding which first held that "the claimant
was, in fact, suffering from an illness over which she had no
control," but stated in the next paragraph: "The Referee finds, at
this point, that the claimant is, in fact, undergoing treatment for
a cure and is able to engage in an active job search." The decision
does not reveal whether the claimant's nonvolitional drinking had
become volitional during the time between her termination from
employment and her testimony at the hearing. Second, the referee's
conclusion that Ortega suffered from "an illness over which she had
no control" was conclusory because neither Ortega nor the two health
professionals addressed the issue.
Because this determination is necessary, we reverse the court of
appeals' affirmance and order the case remanded to the Division for
further proceedings to make the factual determination whether
Ortega's alcoholism was volitional or nonvolitional. Accordingly, we
reverse and remand for further proceedings consistent with this
opinion.
Footnotes
1. Antabuse is a prescription drug which causes a patient to
become ill if he or she ingests alcohol. The Physician's Desk
Reference states:
ANTABUSE (disulfiram) is an aid in the
management of selected chronic alcoholic patients who want
to remain in a state of enforced sobriety so that supportive
and psychotherapeutic treatment may be applied to best
advantage. (Used alone, without proper motivation and
without supportive therapy, ANTABUSE is not a cure for
alcoholism, and it is unlikely that it will have more than a
brief effect on the drinking pattern of the chronic
alcoholic).
Physician's Desk Reference 611-12 (40th ed. 1986) (emphasis in
original).
2. Ortega's blood alcohol content was .206 milligrams of
alcohol per hundred milliliters of blood.
3. The version of section 8-73-108(9) which was in effect at
the time of these proceedings stated:
(9)(a) Subject to the maximum reduction consistent with federal
law, and insofar as consistent with interstate agreements, if a
separation from employment occurs for any of the following reasons,
the employer from whom such separation occurred shall not be charged
for benefits which are attributable to such employment and, because
any payment of benefits which are attributable to such employment
out of the fund as defined in section 8-70-103(13), shall be deemed
to have an adverse effect on such employer's account in such fund,
no payment of such benefits shall be made from such fund:
. . . .
(VIII) Off-the-job use of not medically prescribed intoxicating
beverages or narcotics to a degree resulting in interference with
job performance; . . . .
3 C.R.S. (1983 Supp.) (emphasis added). Section 8-73-108(9)(a)(VIII)
was repealed, effective July 1, 1984, and reenacted as section
8-73-108(5)(e)(VIII), 3B C.R.S. (1986). The only change in language
is that subpart VIII now states: "intoxicating beverages or
controlled substances, as defined in section 12-22-303(7), C.R.S.,
to a degree resulting in interference with job performance." Sec.
8-73-108(5)(e)(VIII), 3B C.R.S. (1986).
4. There was no dispute in the record that Ortega's
intoxication adversely affected her ability to perform her job. The
City's written reprimand to Ortega stated: "Jeopardizing
participants['] lifes [sic] while they swim due to impaired
performance because of drinking before coming to work, can not be
tolerated!" Dr. Beck of Denver General Hospital testified that
Ortega's blood alcohol level of .206 rendered her ... "responses and
... judgment ... impaired."
5. Section 8-73-108 provides:
(4) Full award. An individual separated from a job shall be given
a full award of benefits if any of the following reasons and
pertinent conditions related thereto are determined by the division
to have existed. The determination of whether or not the separation
from employment shall result in a full award of benefits shall be
the responsibility of the division. The following reasons shall be
considered, along with any other factors which may be pertinent to
such determination:
. . . .
(b)(I) The health of the worker is such that he is separated from
his employment and must refrain from working for a period of time,
but at the time of filing his claim he is able and available for
work, or the worker's health is such that he must seek a new
occupation, or the health of the worker, his spouse, or his
dependent child is such that the worker must leave the vicinity of
his employment; except that, if the health of the worker or that of
his spouse or his dependent child has caused the separation from
work, the worker, in order to be entitled to a full award, must have
complied with the following requirements: Informed his employer of
the condition of his health or the health of his spouse or dependent
child prior to his separation from employment; substantiated the
cause by a competent written medical statement issued prior to the
date of his separation from employment when so requested by the
employer prior to the date of his separation from employment or
within a reasonable period thereafter; submitted himself or his
spouse or his dependent child to an examination by a licensed
practicing physician selected and paid by the interested employer
when so requested by the employer prior to the date of his
separation from employment or within a reasonable period thereafter;
and submitted himself, his spouse, or his dependent child to an
examination by a licensed practicing physician selected and paid by
the division when so requested by the division. Award of benefits
pursuant to this subparagraph (I) shall include benefits to a worker
who, either voluntarily or involuntarily, is separated from
employment because of pregnancy and who otherwise satisfies the
requirements of this subparagraph (I). . . .
3B C.R.S. (1986).
6. Section 8-73-108 provides:
(4) Full award. An individual separated from a job shall be given
a full award of benefits if any of the following reasons and
pertinent conditions related thereto are determined by the division
to have existed.
. . . .
(j) Being physically or mentally unable to perform the work....
3B C.R.S. (1986).
7. The United States Supreme Court recently addressed a similar
concept in the context of the "willful misconduct" language of the
Rehabilitation Act, 38 C.F.R. Sec. 3.301(c)(2) (1987). Traynor v.
Turnage, --- U.S. ----, 108 S.Ct. 1372, 99 L.Ed.2d 618 (1988).
This Act provides educational assistance benefits to veterans of the
Armed Forces under the G.I. Bill. Veterans who have been honorably
discharged from the armed forces are entitled to receive educational
assistance benefits through the Veterans' Administration (VA). These
benefits generally must be used within ten years following discharge
or release from active duty. Id. at ----, 108 S.Ct. at 1376.
The petitioners, Traynor and McKelvey, both sought to continue to
receive benefits after the ten-year period had expired "on the
ground that they had been disabled by alcoholism during much of that
period." Id. The issue was whether the petitioners'
alcoholism constituted willful misconduct under the statute, thus
justifying the VA's denial of the requested extension of time. Id.
at ----, 108 S.Ct. at 1378.
The statute governing VA educational benefits under the G.I. Bill
contains "an exception to [the] 10-year delimiting period for
veterans who delayed their education because of 'a physical or
mental disability which was not the result of [their] own willful
misconduct.' " Id. at ----, 108 S.Ct. at 1380. The Court
concluded, after analysis of other statutes and the legislative
history, that the willful misconduct provision enacted in 1977
"precluded an extension of time to a veteran who had not pursued his
education because of primary alcoholism." Id. at ----, 108
S.Ct. at 1381. Primary alcoholism is alcoholism that is not
secondary to, and a manifestation of, an acquired psychiatric
disorder.
8. There exists " 'a substantial body of medical literature
that even contests the proposition that alcoholism is a disease,
much less that it is a disease for which the victim bears no
responsibility.' Indeed, even among many who consider alcoholism a
'disease' to which its victims are genetically predisposed, the
consumption of alcohol is not regarded as wholly involuntary."
Traynor, --- U.S. at ----, 108 S.Ct. at 1383 (citation omitted)
(quoting McKelvey v. Turnage, 792 F.2d 194, 198
(D.C.Cir.1986) (per curiam)).
9. Jacobs, 25 Cal.App.3d at 1038, 102 Cal.Rptr. at 366;
Huntoon, 275 N.W.2d at 448; Craighead, 420 So.2d at
689; Moeller, 281 N.W.2d at 882. See Morrell v.
Commonwealth, 108 Pa.Commw. 499, --- n. 3, 485 A.2d 1214, 1217
n. 3 (1984) (Williams, J., dissenting).
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