Indictment: Former state employee forged 27 doctor’s notes

A Travis County grand jury indicted a former employee of the Texas Water Development

Board, alleging she repeatedly submitted forged doctor’s notes to excuse herself from work.

Kelly Lee McCarty, 33, faces 27 counts of tampering with a government record for

allegedly providing 27 false documents to the government agency between July 2009 and

January 2011. The indictment also includes one count of theft by a public servant for use of sick

leave time worth $25,000. Both charges are second-degree felonies carrying a minimum sentence

of two years probation and a maximum of 20 years in prison.

Merry Klonower, director of communications for the TWDB, said McCarty worked as an

administrative assistant from June 11, 2007 until Jan. 25, 2011.

Criminal defense attorney Ben Florey said his client suffers from depression and visits

the emergency room multiple times monthly for severe migraines. McCarty quickly exhausted

the relatively small amount of sick leave she had accrued as a new employee and turned to the

agency’s pool of other employees’ donated sick leave time.

Florey said the TWDB told McCarty that unless she submitted documentation of a

“catastrophic” illness, she could not legitimately use the donated time and would be fired. The

agency became suspicious that McCarty forged the signatures on some of her notes, and

terminated her after conducting an investigation.

The indictment states that the 27 notes in question were purportedly signed by Tadd L.

Davis at the Austin Women’s Health Center, and excused McCarty from work for various

reasons including mandated bed rest and doctor’s appointments. Some of the notes mention

improvement of McCarty’s kidney function, and one excuses her from work for the entirety of

March 2010. None of the 27 notes specifically mentions migraines or depression.

Julie Smith, office manager for the health center, said the clinic would not comment on

McCarty’s case due to confidentiality concerns.

Florey said McCarty is currently pleading not guilty. McCarty’s case is set on the pretrial

docket of the 403rd District Court for May 2. At that time, Florey will meet with representatives

from the district attorney’s office to review the state’s evidence against McCarty.

“We may go to trial, but I wouldn’t be able to make that decision until after I’ve learned

more about the state’s case,” Florey said.

Jason Knutson, an assistant district attorney and prosecutor for the case, said this offense

is significant because it involves a former government employee.

“It erodes trust in government,” Knutson said. “People are more distrustful of

government than ever.”

Florey said the public should not jump to conclusions about McCarty’s alleged actions

before understanding her financial circumstances and the severity of her health problems.

“This is not a high level scheme with any evil intent,” Florey said. “It is merely a

working mom trying to make ends meet despite serious medical issues that were not covered by

the sick leave she had.”

Robert Baier, a forensic document examiner, said modern technology has simplified the

creation of false medical documents such as excuse notes and prescriptions. Perpetrators can

scan a physician’s letterhead, alter it with photo editing software and either digitally insert or

trace a signature by hand.

“What can be done with Photoshop is absolutely incredible,” Baier said.

A recent survey commissioned by The Workforce Institute at Kronos, Inc., a personnel

management company, reports that 52 percent of American workers surveyed admitted to calling

in sick when they were not actually ill, and that unscheduled absences cost organizations 8.7

percent of payroll each year.

Rick Raymond, a private investigator based in Daytona Beach, Fla., performs

surveillance of employees whom companies suspect of committing sick leave fraud to find out if

the employee is actually home ill. Raymond said the financial impact of fraudulent sick leave is

significant because of added expenses such as benefits, worker’s compensation insurance and

payroll taxes. When employees dishonestly use paid sick leave, companies lose more than just

the employee’s wages. In this case, those expenses are funded by taxpayer dollars.

“It actually costs more than a dollar to pay an employee a dollar,” Raymond said.

Florey said that if found guilty, McCarty will likely face probation and restitution of the

$25,000 the state accuses her of obtaining dishonestly by using paid sick leave. Florey said he

does not anticipate that McCarty will serve jail time.

“I have a hard time understanding why a jury would put her in prison when she could

find work and make payments to make the state whole again for what it has lost,” Florey said.

Raymond said McCarty will likely be found guilty, because the state simply has to prove

that the notes were forged, regardless of whether she was actually ill. He doubts she will spend

time behind bars because the general public does not view fraudulent sick leave as a serious

offense.

“It’s not a sexy crime like a drug deal or murder,” Raymond said.

Bridget Eyler, a defense attorney based in Dallas, said growing public resentment about

corruption in government will not help McCarty in a jury trial.

“People don’t like when the government takes money, because that’s all they’ve been

seeing lately,” Eyler said.

(Percentage of Employees Admitting to Calling in Sick When Not Actually Sick)Data: Kronos Global Absenteeism Survey, The Workforce Institute at Kronos Incorporated, August 2011