JOAN FIGGS, Employee, v. DUNGARVIN, INC., and ZURICH NORTH AM., Employer-Insurer/Appellants.
WORKERS= COMPENSATION COURT OF APPEALS
DECEMBER 9, 2004
File No. WC04-241
TERMINATION OF EMPLOYMENT - MISCONDUCT; STATUTES CONSTRUED - MINN. STAT. ' 176.101, SUBD. 1(e)(1). Substantial evidence supports the compensation judge=s finding that the employee=s actions did not constitute misconduct justifying cessation of temporary total disability compensation under Minn. Stat. ' 176.101, subd. 1(e)(1).
Determined by: Stofferahn, J., Rykken, J., and Pederson, J.
Compensation judge: William R. Johnson
Attorneys: William G. Moore, Fridley, MN, for the Respondent. Lee J. Keller, Drawe & Heisick, Minneapolis, MN, for the Appellants.
DAVID A. STOFFERAHN, Judge
The employer and insurer appeal from the compensation judge=s determination that the employee was not terminated for misconduct within the meaning of Minn. Stat. '176.101, subd. 1(e)(1) and was not barred from the receipt of temporary total disability compensation. We affirm.
The employer, Dungarvin, Inc., operates several group homes for people with developmental disabilities. The employee, Joan Figgs, became employed for the employer in 2001 on a 36-hour per week basis working day hours as a coordinator at its Arner Group Home. Her job consisted primarily of direct patient care including bathing and dressing patients, administering medication, and assisting in cooking, cleaning and community activities. The employee also performed clerical duties including budgeting, paying bills and depositing checks for the residents, making resident appointments, and ordering supplies.
On January 17, 2004, the employee sustained an admitted work injury to her low back. She was taken off work entirely until April 2, 2004, when she was released to work four hours per day under restrictions by her treating doctor which precluded direct patient care. On April 6, the employer and insurer mailed a letter offering part time light duty work performing clerical duties. On April 7, they also telephoned the employee about a return to light duty work. The employee stated that she wanted to speak to her attorney before accepting the job offer. The employer prepared and served a notice of intent to discontinue temporary total disability benefits (ANOID@) effective that day, stating that the employee had refused to accept light duty work offered to her.
On April 8, 2004, the employee=s QRC received a copy of the proposed return to work schedule sent by the employer. She discussed by telephone the issues regarding the employee=s return to work with both the employer and the employee, and the employee agreed to return to work on the following day, a Friday. The record before us does not disclose whether the employee actually began work on April 9, but the QRC=s records state that the employee called to report that she had been trying to work out her hours with the employer, as her schedule had now been changed to include night hours, although the QRC had already informed the employer that the employee would not be able to work nights due to her obligations as a foster care mother.
Since insufficient light duty work was available at the Arner location to provide the employee with four hours work each day, the employer scheduled the employee to perform similar light duties on various days at some of the employer=s other group homes. The employee had never worked at any of these facilities before. On Monday, April 12, 2004, the employee worked four hours at the employer=s Highland facility. The following day, April 13, the employee worked four hours at the employer=s Richmond group home. The next day, April 14, the employee was scheduled to work at the employer=s Camara group home. When she arrived there, she found the doors locked, and no one answered the door. The employee did not have a key for the home and did not know what to do. She waited in her car for an hour and a half for someone to open the door, and then went to a convenience store to call Jaimie Johnson, who was an acting supervisor at the Arner facility and had been placed in overall supervision of the employee=s light duty work. However, the employee was told that her supervisor was in a meeting and unavailable. The employee also called her QRC to report that she could not gain entry at the work site for which she was scheduled. She waited a while longer at the Camara facility but eventually drove home, and again telephoned the employer. She was then told to return to the Camara group home, and that someone would be sent there to let her in. When she arrived there, she was told that she was no longer needed as another employee had now arrived to work there.
The employee apparently worked at the Arner facility four hours each day on Thursday and Friday, April 15 and 16, and from Monday through Wednesday, April 19 through April 21. On April 19, a new work issue arose when the employer told the employee to begin performing housecleaning duties in addition to clerical work. The employee called her QRC, as she was not certain whether the duties being requested were outside of her restrictions. The QRC obtained a job description and, on April 21, met with the employee and her doctor. The employee=s doctor authorized her to perform light cleaning chores so long as she did no overhead reaching.
On the next day, April 22, the employee was scheduled to work at the employer=s Tikvah facility, but when she arrived there the door was locked and she was unable to gain entry. She waited for a while and then went to a convenience store to call the employer to report that she was locked out, but after she continued to be unable to gain access to the job site she eventually gave up and went home. She called the employer again from home and finally managed to reach her supervisor, Ms. Johnson. Ms. Johnson acknowledged that the employee had called her that day from home reporting she had been unable to enter the Tikvah facility.
Although the employee had returned to work, and a new unopposed NOID had been filed to discontinue temporary total disability on that basis, the employer and insurer had not withdrawn their initial NOID which asserted the employee had refused light duty work. On April 22, 2004, the Department of Labor and Industry scheduled an administrative conference on the NOID for May 12, 2004.
On Friday, April 23, the employee again worked at the Arner facility. She telephoned her QRC to report that a procedure had now been worked out with the employer, by which she would be able to gain entry to group homes at which she was scheduled to work when no one was there. The procedure involved calling for an access code to a lock box containing the facility key.
On April 24, 2004, the employee prepared and signed her time slips for the prior two weeks. She recorded time for both dates on which she had reported for work but had been locked out, April 14 and 22. She inadvertently wrote AArner@ as the work site location on all of the slips for that week, which was incorrect with respect to the April 22 slip.
The employee worked Monday, April 26 through Wednesday, April 28 at each of three different facilities. On April 29, 2004 the employee was scheduled to work at the Arner facility. When she arrived there, she was confronted by her supervisor, Jaimie Johnson, who asked her to explain why she had submitted time slips for April 14 and 22, when she had not actually performed work at those job sites. The employee replied that she had thought she should be paid for the time she spent going to and waiting outside of facilities where she was scheduled to work but which had been locked when she arrived. Ms. Johnson replied that the employer did not pay Atravel time.@ Ms. Johnson also accused the employee of having forged the signatures of two of the employee=s supervisors which did not appear to be in their handwriting. The employee was then terminated from employment for allegedly falsifying time records.
On May 4, 2004 the employer filed a third notice of intent to discontinue, alleging that the employee was not entitled to workers= compensation benefits on the basis that she had been terminated for misconduct. The employee requested an administrative conference. At the conference already scheduled on May 12, 2004, a compensation judge reviewed all three NOIDs. The judge allowed discontinuance of temporary total benefits based on the return to work, and allowed discontinuance of temporary partial benefits because the employee was not working. She concluded that she did not have jurisdiction to determine whether the employee was or was not entitled to recommencement of temporary total disability compensation as the employee had not filed a new claim petition seeking temporary total disability following her termination.
On May 21, 2004 the employee filed a claim petition seeking temporary total disability from April 29, 2004 and continuing. The employer and insurer denied benefits based on the defense that the employee had been terminated for misconduct within the meaning of Minn. Stat.'176.101, subd. 1(e)(1). Following a hearing on July 13, 2004, before Compensation Judge William Johnson, the employee was awarded temporary total disability compensation, with the compensation judge finding that the employee=s actions did not constitute misconduct pursuant to that statute. The employer and insurer appeal.
Minn. Stat. ' 176.101, subd. 1(e)(1), provides that:
If temporary total disability compensation ceased because the employee returned to work, it may be recommenced if the employee is laid off or terminated for reasons other than misconduct within one year after returning to work if the layoff or termination occurs prior to 90 days after the employee has reached maximum medical improvement.
The term "misconduct" is not defined in chapter 176 of the Minnesota Statutes. However, this court has previously used the misconduct definition applicable to unemployment benefit cases, as set forth in Tilseth v. Midwest Lumber Co., 295 Minn. 372, 204 N.W.2d 644 (1973) when construing the definition of misconduct in Minn. Stat. ' 176.101, subd. 1(e)(1). See, e.g., Langworthy v. Signature Flight Support, slip op. (W.C.C.A. July 8, 1998). In Langworthy, this court held that misconduct, for purposes of this statute,
is limited to conduct evincing such wilful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of [the] employer's interest or of the employee's duties and obligations to the employer.
Id. at 3, citing Tilseth, 295 Minn. at 374-75, 204 N.W.2d at 646 (quoting Boynton Cab Co. v. Neubeck, 237 Wis. 249, 259, 296 N.W. 636, 640 (1941)). Our review of a compensation judge=s findings as to whether an employee's actions constituted misconduct is a mixed question of law and fact.
The employer and insurer first assert that the employee falsified her time records by submitting Afictitious@ time entries, and argue that the compensation judge should have construed the submission of falsified time records as an intentional and substantial disregard of the employer=s interests and of her duties and obligations as an employee. While we agree that deliberate falsification of time records is a serious matter, we note, as did the compensation judge, that the only hours that the employer contends are Afalse@ are those which the employee claimed for the dates on which she went to her scheduled job site but was unable to gain admittance as the employer had not provided her with a means of entry. Since the employee had called the employer on each of those dates to report that she had been unable to enter the job site to perform her duties, and had discussed the problem with the supervisor to whom she submitted the timecard, it seems highly unlikely that she was attempting to misrepresent the nature of the hours she was claiming for that date. Rather, the employee=s submission of a claim for time on that date is consistent with her testimony that she believed she was entitled to payment for her time when she went to her work site as scheduled and spent several hours waiting for the employer to resolve the problems with her gaining access to the facility. The compensation judge noted that the employee had exercised Apoor judgment@ in claiming compensation for this time by simply entering the time on her timecard, but concluded that the employee=s actions in so doing were not so egregious as to constitute the sort of misconduct resulting in forfeiture of future wage loss benefits. Accepting the compensation judge=s factual findings, and with deference to his resolution of witness credibility issues, we cannot conclude that the compensation judge erred in so holding.
The employer and insurer also alleged that the employee forged the signatures of two supervisors. The employee denied having done so. The compensation judge did not make any finding as to who had signed these supervisor names to the time slips in question, but noted that the employee appeared to have nothing to gain by the alleged forgery as there was no dispute that the employee had worked the hours on the time cards for the two four-hour periods in question. There was also evidence that the employee had faxed her time cards to these supervisors requesting their signatures. The employer and insurer argue on appeal that the compensation judge erred in failing to make a finding as to whether the employee had forged the signatures. Having considered all the evidence in the case it appears to us that the compensation judge could reasonably conclude that the evidence was insufficient to establish that the employee, rather than someone else, had written these supervisor names on the time cards. In addition, the compensation judge reasoned that even if he were to conclude that the employee had written her supervisors= names on the cards, the evidence was insufficient to show an intent to deceive, since there would have been little for the employee to gain by forging the signatures. While the evidence could lend itself to a variety of interpretations, we cannot say that the compensation judge erred in concluding that the employer and insurer failed to clearly demonstrate that the employee committed misconduct for the purposes of Minn. Stat. '176.101, subd. 1(e)(1).
The employer and insurer contend that, regardless of the basis for the compensation judge=s reasoning, this court should reverse the compensation judge in order to ensure that unemployment and workers= compensation decisions in this state are in harmony. They cite Ruzynski v. Cub Foods, 378 N.W.2d 660 (Minn. App. 1985), for the premise that the unemployment case law holds that timecard irregularities similar to those in this case constitute misconduct. That case involved an employee who was denied unemployment compensation after termination for violating the employer=s timecard policies, falsifying his timecard and leaving work earlier than claimed.
We are not persuaded to reverse on the basis of this argument. First, the Ruzynski court expressly stated that the issue in that case was simply whether the record contained sufficient evidence to sustain the factual findings of the commissioner=s representative. The case thus was decided under a review standard similar to this court=s substantial evidence standard. As this court has repeatedly noted, cases affirming factual findings under such a standard are of limited precedential value. Regan v. VOA National Housing, 61 W.C.D. 142, 151 (WCCA 2000). Second, cases involving alleged misconduct are heavily dependent on the unique facts of each case, and the facts in Ruzynski are, in significant respects, different from those presented in this case. Finally, this court has previously stated that our general adoption of a definition of misconduct also used in Minnesota unemployment law cases does not constitute an adoption of unemployment case law as precedent in applying that definition, since different factors are often involved in determining what expectations are reasonable on the part of employers and employees in the post injury employment of a disabled worker than are present in the usual unemployment law case. See, e.g., Hughes v, Versa/Northern Iron, 58 W.C.D. 520 (W.C.C.A. 1998).