W.C. No. 4-527-581Industrial Claim Appeals Office.
April 2, 2004
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Jones (ALJ) which denied a claim for temporary total disability (TTD) benefits. The claimant alleges the ALJ lacked jurisdiction to conduct the hearing because it was not conducted and completed within the time limits established by § 8-43-209(1), C.R.S. 2003, and § 8-43-215(1), C.R.S. 2003. The claimant further contends the evidence does not support the finding she was responsible for her termination from employment. We affirm.
In February 2003 the claimant applied for a hearing seeking TTD benefits. The hearing was conducted on September 25, 2003. The hearing was originally scheduled for June 25, 2003, but for reasons which are not clear it was rescheduled to the later date. There is no indication the claimant objected to the rescheduling.
The ALJ found the claimant sustained a compensable injury in November 2001 which precluded her from performing her usual duties. However, in September 2002 the claimant accepted a light duty position offered by the employer.
In the first week of October the claimant requested two weeks off because her sister was seriously ill and hospitalized in Mexico. The sister provided care to the claimant’s father. The claimant’s supervisor denied the request for two weeks leave, apparently because the claimant indicated she did not plan to go to Mexico during the first week. However, the supervisor approved leave from October 7, 2002 until October 15, 2002. The ALJ found the claimant had “rights under the Family Medical Leave Act” to care “for a sick relative,” but she was not informed of these right by the supervisor.
Under the employer’s attendance policy, the claimant was expected to contact the employer 30 minutes before the shift if she was unable to report for work. However, the claimant did not report for work between October 15 and October 19, nor did she call the employer. Under these circumstances, the claimant was terminated for violation of the policy.
The ALJ concluded the claimant was responsible for the termination of employment within the meaning of § 8-42-103(1)(g), C.R.S. 2003, and § 8-42-105(4), C.R.S. 2003 (termination statutes). In support, the ALJ found the claimant’s failure to call the employer to explain her absence was a volitional act which lead to the claimant’s termination. Consequently, the ALJ denied the claim for TTD benefits following the termination.
I.
The claimant first contends the ALJ lacked “subject matter jurisdiction” to determine the claim for TTD benefits because the hearing was not commenced and completed within one hundred twenty days of the application for hearing as mandated by § 8-43-209 and § 8-43-215(1). We disagree.
Section 8-43-209 states that hearings “shall be heard within eighty to one hundred days after the” filing of the application for hearing. Section 8-43-215(1) provides that a hearing “shall be completed within one hundred twenty days” of the application for hearing as provided in § 8-43-211(2), C.R.S. 2003. The claimant’s argument notwithstanding, we do not consider these provisions to be “jurisdictional.” Unless the contrary intent appears, time limits imposed on public bodies are usually construed as directory rather than mandatory. Langton v. Rocky Mountain Health Care Corp., 937 P.2d 883 (Colo.App. 1996). Here, as with the provision construed in Langton, the purpose of the statutes is to expedite the hearing process. If we were treat these provisions as jurisdictional, we would be required to remand the matter for a new hearing and order, thereby delaying the process and defeating the legislative objective. Moreover, the statutes don’t establish a procedure to be followed if a hearing is not commenced and completed within the time limitations. The absence of express legislative direction concerning the effect of failure to conduct the hearing in a timely fashion indicates the provisions are directory rather than jurisdictional. Cf. Hilllebrand Construction Co. v. Worf, 780 P.2d 24 (Colo.App. 1989).
Further, the claimant correctly states that subject matter jurisdiction refers to the power of a court to consider and determine the type of case with which it is presented. Sanchez v. Straight Creek Constructors, 41 Colo. App. 19, 580 P.2d 827 (1978). Once subject matter is properly invoked, a court is not deprived of jurisdiction by the failure to comply with a statutory requirement. People v. Grell, 950 P.2d 660 (Colo.App. 1997).
Here, the ALJ’s subject matter jurisdiction was invoked with the claimant’s filing of the initial application for hearing in February 2003, and the claimant certainly does not contend the ALJ lacked subject matter jurisdiction to award TTD benefits at that time. Thus, the subsequent failure to conduct the hearing within the statutory time limits was procedural rather than jurisdictional in nature, and the claimant waived any possible objection by failing to raise the issue when the matter proceeded to hearing in September 2003. Hoyman v. Coffin, 976 P.2d 311, 313 (Colo.App. 1998).
II.
The claimant next contends the ALJ erred in finding she was responsible for the termination of employment because the supervisor testified the claimant “could” have been terminated even if she had called in. We perceive no error.
In Colorado Springs Disposal v. Industrial Claim Appeals Office, 58 P.3d 1061 (Colo.App. 2002), the court held the term “responsible,” as used in the termination statutes introduces into the Act the concept of “fault.” Thus, a claimant is responsible for a termination if the claimant performs a volitional act or exercises some degree of control over the circumstances leading to the termination considering the totality of the circumstances. This concept is broad and turns on the specific facts of each case. Padilla v. Digital Equipment Corp., 902 P.2d 414 (Colo.App. 1994); Ellis v. All American Home of Colorado, Inc., (W.C. No. 4-544-396, June 26, 2003).
The question of whether the claimant was responsible for the termination because she engaged in volitional conduct which caused the discharge was one of fact for determination by the ALJ. Padilla v. Digital Equipment Corp., supra. Consequently, 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 of review requires that we view the evidence in a light most favorable to the prevailing party, and defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Metro Moving Storage Co. v. Industrial Claim Appeals Office, 914 P.2d 411
(Colo.App. 1995).
Here, the claimant admitted that she knew the employer’s attendance policy required her to call in 30 minutes before a shift, or the absence would be treated as unexcused. (Tr. P. 32). Nevertheless, the claimant failed to call between October 15 and October 19. The employer’s witness testified that the failure to call in was a factor in the decision to terminate the claimant. (Tr. P. 33).
The claimant asserts that because the supervisor testified that unexcused absences “could” lead to termination regardless of the failure to call in, the failure to call in was not a factor in the claimant’s termination. (Tr. P. 34). However, as we understand the supervisor’s testimony, calling in could have resulted in an excused absence and the termination might have be avoided if the employer determined there was sufficient reason for the absence. Further, the employer’s attendance policy provides for “approved” leaves of absences and other absences “not specifically accounted for.” Thus, the ALJ could logically infer the claimant might have avoided termination if she had called the supervisor from Mexico, but instead the claimant chose not to do so. Under these circumstances, the plausible inferences drawn from the record support the finding that the claimant engaged in volitional conduct which caused the termination.
III.
The claimant next contends that the “employer should not be permitted to assert termination for cause when it has violated it own procedures and the” Family Medical Leave Act (FMLA). Essentially, the claimant argues that if the employer had offered leave under the FMLA, as it was allegedly required to do, the claimant would have had more time to return from Mexico and would not have been terminated.
However, the question of whether the employer complied with the FMLA was not the issue presented to the ALJ. Rather the issue was whether the claimant engaged in volitional conduct which was a cause of the termination. A determination that the claimant engaged in volitional conduct does not require a finding that the employer complied with every statute or policy which may have some application to the fact pattern presented by the termination. See Keil v. Industrial Claim Appeals Office, 847 P.2d 235 (Colo.App. 1993) (in unemployment insurance context fact that employer allegedly failed to comply with three-step disciplinary policy mandated by the employment contract did not automatically mean claimant was not at “fault” for discharge).
IT IS THEREFORE ORDERED that the ALJ’s order dated October 6, 2003, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate this 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, within twenty (20) days after the date this Order was mailed, pursuant to §8-43-301(10) and § 8-43-307, C.R.S. 2003. The appealing party must serve a copy of the Petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this order were mailed to the parties at the addresses shown below on April 2, 2004 by A. Hurtado.
Sara Palacios-Ortiz, 228 Maple St., Fort Morgan, CO 80701
Sheryl Wittstruck, W.C. Coord., Excel Corporation, C. S. 4100, Fort Morgan, CO 80701
Cargill, Inc., c/o Margaret Johnson, Crawford Company, 2850 McClelland, #1600, Fort Collins, CO 80525
Britton Morrell, Esq., 1305 8th St., Greeley, CO 80631 (For Claimant)
Tama L. Levine, Esq., 999 18th St., #1755, Denver, CO 80202 (For Respondents)