W.C. No. 4-722-655.Industrial Claim Appeals Office.
May 13, 2008.
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FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Friend (ALJ) dated January 8, 2008, that found the claimant was not responsible for her termination of employment and awarded temporary total disability benefits. We affirm.
The ALJ’s pertinent findings of fact are as follows. The claimant sustained a compensable injury but returned to work on modified duty. At the time of the termination, the claimant was disabled as a result of the compensable injury. The claimant submitted an inaccurate time sheet. The time sheet was inaccurate, not because of any dishonesty on the part of the claimant, but because she submitted the time sheet early and was careless in not making changes when she did not work the hours she projected she would work. The employer terminated the claimant because it thought her to be dishonest when she submitted timesheets and did not correct those timesheets before the start of the new pay period. The ALJ, considering the totality of the circumstances leading to the claimant’s termination, found that she did not commit a volitional act or otherwise exercise a degree of control over the circumstances of her termination. The ALJ concluded that the claimant was not responsible for the termination of her employment and found the insurer liable for temporary total disability benefits.
On appeal, the respondents contend that there is no evidence in the record to support the finding that the employer terminated the claimant based on any mistaken belief that the claimant was “dishonest.” Rather, the respondents argue that the evidence
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established the claimant was terminated for submitting false timesheets and failing to correct them.
Sections 8-42-105(4) and 8-42-103(1)(g), C.R.S. 2007, 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).
Here the ALJ found the following:
Employer knew of the inaccuracies in the time sheet that Claimant submitted that led to her termination. It did not need revised time sheets from Claimant to accurately compensate Claimant for the time she worked. If Employer had decided to terminate Claimant for the inaccurate time sheet, it would have done so at the meeting on July 13, 2007. Employer did not terminate Claimant for submitting an inaccurate time sheet. Rather, it terminated Claimant because it concluded that Claimant’s failure to change her inaccurate time sheets after the meeting showed Claimant to be dishonest. Employer terminated Claimant’s employment because it believed Claimant to be dishonest. Claimant was not, in fact, dishonest. Claimant was merely mistaken or careless.
Findings of Fact, Conclusions of Law, and Order at 3, ¶ 3.
The respondents argue that the fact that the employer gave the claimant the opportunity to amend her timesheet can only lead to the inference that the employer did not believe the claimant was dishonest and instead terminated her for submitting false timesheets and failing to correct them. We disagree.
The record does contain evidence from exhibits and testimony from witnesses for the employer that the claimant was terminated due to “timesheet falsification.” Tr. at 9;
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Exhibit 7 at 1. In addition the claimant had been warned against falsifying timesheets. Exhibit A at 1. This evidence was clearly relevant to establish that her conduct in falsifying cards was volitional. See Padilla v. Industrial Claim Appeals Office, supra.
However, we cannot say that this evidence is such that the ALJ was compelled as a matter of law to draw the conclusion that the claimant was terminated only because she submitted false timesheets and failed to correct them rather than being terminated for dishonesty. For example, the employer’s administrative coordinator acknowledged that, although the claimant’s timesheets were accepted early and as prepared by the claimant, he relied on people’s honesty to change them if their schedules changed. Tr. at 42.
Here, the claimant testified that she had turned the timesheets in early to take advantage of a policy on “pay advance” that the company had. Tr. 64. The time sheets she submitted early here turned out to not actually coincide with the hours she worked. Tr. 66-67. The claimant testified that after the July meeting regarding the timesheets she understood that from that point on she was to make changes in her time sheet but received no specific direction to change the timesheets in question that she had already submitted. Tr. 67-68.
The ALJ could reasonably infer that the claimant had not intended to “falsify” the time sheets and further infer that the employer believed claimant to be dishonest. We note that the word “falsify” may be used to convey two distinct meanings, either that of being intentionally or knowingly untrue made with intent to defraud, or mistakenly and accidentally untrue. Black’s Law Dictionary 542 (5th ed. 1979). The determination of the fault issue is ordinarily one of fact for resolution by the ALJ. Padilla v. Digital Equipment Corp., supra. See also, Mouser v. Style Drywall, W.C. No. 4-631-640 (September 15, 2006); Chavez v. B B Dunham Electric, W.C. Nos. 4-595-599 4-596-277
(December 10, 2004). In our opinion, the ALJ’s conclusion that the employer terminated the claimant’s employment because it believed the claimant to be dishonest when the claimant in fact was merely mistaken or careless is supported by substantial evidence in the record.
IT IS THEREFORE ORDERED that the ALJ’s order issued January 8, 2008 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_____ John D. Baird
_____ Thomas Schrant
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LEANN CRACAUER, FT COLLINS, CO, (Claimant).
SHILOH HOMES, INC. DBA SHILOH HOUSE, Attn: MS ROBIN LOUCKS, LITTLETON, CO, (Employer).
PINNACOL ASSURANCE, Attn: HARVEY D FLEWELLING, ESQ., DENVER, CO, (Insurer).
RING ASSOCIATES, PC, Attn: JESS M PEREZ, FT COLLINS, CO, (For Claimant).
RUEGGSEGGER SIMONS SMITH STERN, LLC, Attn: STACY J TARLER, DENVER, CO, (For Respondents).
PINNACOL ASSURANCE, Attn: HEATHER DECK, DENVER, CO, (Other Party).
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