STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)


DENISE Y MCKINNEY, Employee

US POSTAL SERVICE, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00604513MW


On May 26, 2000, the Department of Workforce Development (department) issued an initial determination finding that the employee was discharged for misconduct connected with her employment in week 19 of 2000. The employee timely requested a hearing. A hearing was held before an administrative law judge (ALJ) on June 27, 2000.

On June 29, 2000, the ALJ issued an appeal tribunal decision (ATD) affirming the department's initial determination, finding that the employee was discharged for misconduct in week 19 of 2000. The employee timely petitioned the adverse appeal tribunal decision.

On November 16, 2000, the Labor and Industry Review Commission (commission), on its own motion, ordered that testimony be taken before an ALJ, acting on behalf of the commission, with respect to a completed UCB-474 medical form as well as any relevant "Temporary Functional Status Reports" prepared by the employer during the course of the employee's employment. The remand hearing was held on January 24, 2001, before an ALJ. At that time a completed UCB-474 medical form and other documentation were submitted into evidence.

The commission has considered the employee's petition, the parties' positions, and reviewed all of the evidence submitted at both hearings. Based on the applicable law, record and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked periodically over a 12 year period as a mail handler, for the employer, the United States Postal Service. The employee resumed full-time work beginning in June of 1997 and worked until May 5, 2000 (week 19) when she was discharged. Prior to the employee's discharge, the employee signed a last chance agreement in which she agreed to comply with the terms of her employment, including work assignments. The agreement was signed on March 2, 2000.

The employee normally worked in the "first class cutup" area, but at times she had been placed on light duty due to carpal tunnel syndrome and tendinitis. The "bundle belt area" is the only light duty assignment available to mail handers. On March 15, 2000, the day before the incident that led to the employee's discharge, the employee had performed light duty work in the bundle belt area due to medical problems and restrictions. According to Exhibit L, page 2, the duty nurse in charge restricted the employee to "no repetitive use of upper extremities and no lifting of over 10 pounds until the end of shift". The report was effective March 13 through March 15.

On March 15, the nurse informed the employee to come back the next day (March 16) to obtain another light duty form if the employee was unable to see her doctor before the start of her shift. Because the employee was unable to see her doctor prior to the start of her March 16 shift, and her medical problems continued, the employee reported to the bundle belt area, the light duty area, until the duty nurse could formally assign her to light duty work. The employee's supervisor, Rodney Lynx, paged the employee on March 16 because she was not in the work area she was assigned to be in. The employee was upset because Mr. Lynx was looking right at her in the light duty work area when he paged her and was fully aware of her whereabouts on March 16. The employee did not respond to her supervisor's pages because she had been told not to have any contact with Mr. Lynx due to a sexual harassment charge she had previously filed against him.

Mr. Lynx and other management personnel approached the employee at the light duty area. At that time the employee confirmed that she was in the light duty area because she had to see the nurse again and was waiting to be assigned to light duty for her shift on March 16. The employee explained that she did not report to the cutup area, her normal work area because she believed she was still on light duty from the night before, March 15. The employee then went to her supervisor's office and was told to turn in paperwork relating to her light duty assignment. The employee waited there until the nurse returned. The nurse in fact did put the employee on light duty for March 16. See Exhibit L, page1.

The employee was subsequently discharged for failing to follow the instructions of her supervisor and for being absent from her work area without permission, while on pay status.

The issue for review is whether the employee's discharge was for misconduct connected with her employment, within the meaning of Wis. Stat. § 108.04(5). In Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249, 296 N.W. 636 (1941), the leading case with respect to the meaning of the term "misconduct" as applied to unemployment compensation in the United States, the court said, in part, as follows:

" . . . the intended meaning of the term 'misconduct' . . . 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 interests or of the employee's duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good-faith errors in judgment or discretion are not to be deemed 'misconduct' within the meaning of the statute."

At the initial hearing, the employer argued that the employee failed to follow proper protocol for light duty work assignments. The employer testified that the proper protocol was to have a physical limitation pronounced by the medical unit who then sent the restriction to the MDO's office (Manager of Distribution Operations). The manager then reviews the restriction and assigns work based on the restrictions. At the initial hearing, the employer stressed that the health unit nurse did not have the authority to assign work. Yet at the remand hearing, Sharon Bryant, the health nurse administrator for Occupational Services indicated that while a nurse may not directly assign an employee to light duty, the nurse's assessment of the restrictions at the time the Temporary Functional Status Report is prepared are controlling. Ms. Bryant also testified that the Temporary Functional Status Reports may be based either on medical documentation provided by the employee or the employee's subjective complaints such as "coming in and saying my hand hurts, my shoulder hurts, et ceteria." Remand Synopsis page 3. Ms. Bryant explained that these employees do not really need immediate emergency care but they are reacting to some appropriate protection for a short period of time.

It is undisputed that the employee did not follow the employer's outlined protocol on March 16. The commission however is satisfied that the employee's deviation was reasonable since she had been instructed by the duty nurse to come back on March 16 for another Temporary Functional Status Report if she could not see her doctor before the start of her shift. The employee reasonably believed that she could report to light duty work on March 16 having obtained a Temporary Functional Status Report from the nurse the previous shift and given the instruction to return to light duty work should she not be able to see her doctor prior to the start of her shift on March 16. Furthermore, the commission is unwilling to conclude that the employee deliberately disregarded her supervisor's pages, especially since he knew her whereabouts while he was paging her.

More importantly though, the commission believes that the Temporary Functional Status Reports submitted into the evidence at the remand hearing indicate that the employee was restricted to light duty work on March 15 and 16. Thus, while the employee's actions on March 16 (reporting to light duty work) may have exhibited poor judgment, especially in light of her last chance agreement, the employee's actions do not rise to the level of misconduct given her physical restrictions and her right to determine whether her regular work assignment exceeded her physical restrictions. In other words, the employee's deviation from the employer's outlined protocol was reasonable and did not, under the circumstances, constitute an intentional disregard of the employer's interests, contrary to the employer's arguments.

The commission therefore concludes that the employee's discharge in week 19 of 2000 was not for misconduct connected with her employment within the meaning of Wis. Stat § 108.04(5).

DECISION

The appeal tribunal decision is reversed. Accordingly, the employee is eligible for benefits beginning in week 19 of 2000, if otherwise qualified.

Dated and mailed March 14, 2001
mckinde.urr : 135 : 1  MC 640.01   MC 657  MC 688

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

Two previous commission decisions support the commission's conclusion that it was not misconduct for the employee to refuse to report to her regular work assignment on March 16, 2000. In Diana Reed v. Breed Electronics LTD Partnership, Hearing No. 00001522JF, (LIRC August 2, 2000), the employee refused to perform a task which she felt would exceed her physical restrictions, even though the employer had promised her occasional assistance. The commission held that the refusal was not misconduct under the circumstances. In Thomas A. Werlein v. Johnson Disposal Service, Inc., Hearing No. 99200049EC (LIRC, April 14, 1999), the employee left a work site that he considered dangerous due to carbon monoxide fumes. The employee left work without punching out to seek his own personal medical treatment even though the employer had made an appointment for him at the same clinic. Under both circumstances, the commission determined that the employee's actions did not amount to misconduct since the employee was in the best position to determine whether his or her physical restrictions or capabilities prevented him or her from doing the work safely or placed the employee in personal danger.

By analogy, the commission is satisfied that the employee's deviation from the employer's stated protocol regarding light duty work assignments was reasonable because the employee believed that her normal work assignment would exceed her physical limitations. This reversal is based on evidence that was not submitted before the ALJ who issued the appeal tribunal decision. Consequently, the commission does not disagree with any credibility assessments determined by that ALJ; rather, the commission reverses the appeal tribunal decision as a matter of law.

cc:
US Postal Service
Attorney Karyn Rotker


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uploaded 2001/03/15