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

EVANS SEABROOKS, Employee

THE GEON CO, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00604875MW

An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is eligible for benefits, if otherwise qualified. No repayment of benefits is required.

Dated and mailed March 1, 2001
seabrev.usd : 178 : 1 MC 652.4

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

In its petition for commission review, the employer argues that it proved that it preserved the chain of custody for the employee's urine sample and therefore the test results from that sample should be admitted into evidence. Perhaps to strengthen this argument, the employer then asks to supplement the record with a copy of a chain of custody form not offered at the hearing.

The ALJ did not admit the drug test result into the record because the medical review officer who signed the drug forms lacked first hand knowledge of the circumstances surrounding the gathering and testing of the employee's sample.

In a similar case, Shada v. Hondo Inc, UI Dec. Hearing No. 99602009RC (LIRC June 11, 1999), the commission found that while the employer presented evidence of a positive drug test result, it failed to establish that the test result was valid. In that case, the record contained a signed certification by the laboratory taking the specimen, but no signed certification from the laboratory performing the drug testing analysis. Consequently, the commission held it was not established that the proper chain of custody procedures were followed. This case likewise contains no certification or credentials from the lab analyst who performed the test which is expressly required by the department's form. The department reasonably requires a party to demonstrate that the individual actually running the test is qualified and therefore that the result can be relied upon. As noted above, no information from the lab is included in the employer's materials other than the Federal Register's certification of the lab facility. Moreover, the Medical Review Officer cannot attest to those facts about which she has neither supervisory nor first hand experience. The commission therefore concludes that the employer's documents do not meet the minimum reliability standard created by the department which is necessary for them to substitute for live in-person testimony by the lab technicians who gathered the sample and did the test. Had the department's form been properly executed, the employer would have met its evidentiary burden. Since it has not, the commission affirms the appeal tribunal decision.

cc:
The Geon Company
Kravit Gass Hovel & Leitner SC

[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]

uploaded 2001/03/02