BEFORE THE
STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION


In the matter of the unemployment benefit claim of

ROBYNN SILBERG, Employee

Involving the account of

AMSOIL, INC., Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 88-201170


Pursuant to the timely petition for review filed in the above-captioned matter, the Commission has considered the petition and all relief requested. The Commission has reviewed the applicable records and evidence and finds that the Appeal Tribunal's findings of fact and conclusions of law are supported thereby. The Commission therefore adopts the findings and conclusions of the Appeal Tribunal as its own.

DECISION

The decision of the Appeal Tribunal is affirmed. Accordingly, the employe is eligible for benefits, if she is otherwise qualified.

Dated and mailed March 30, 1989
105 - CD1005  MC 630.09

Hugh C. Henderson, Chairman

Carl W. Thompson, Commissioner

Pamela I. Anderson, Commissioner

MEMORANDUM OPINION

The sole issue in this case is whether the evidence is sufficient to support a finding that the employe falsely submitted a worker's compensation claim for the injury to her knee. She clearly would be guilty of misconduct had she done so. For the following reasons, however, the Commission believes the evidence insufficient to establish that the employe did so.

First, the employe asserted she injured her knee at approximately 8:05 a.m. This is a time in the morning at which employes were not authorized to be in the break room. This factor does not cast doubt upon the employe's recitation, however. It shows only that she was in the break room 5 minutes after the time employes were authorized to be there.

The employer's voluminous evidence concerning the safety record of its workplace likewise is less conclusive than the employer asserts. The employer's efforts to provide a safe workplace are laudatory. That no other employes have suffered the kind of injury the employe alleges, or injury in a similar manner, however, does not show whether the employe suffered her injury.

The employer's probative evidence is the testimony of Mr. Robert Wilkinson, the witness for the employer who testified that the employe told him the accident in which she injured her knee occurred away from work. The Commission consulted with the Administrative Law Judge who conducted the hearing in this case, in order to determine his assessment of Wilkinson's testimony. The Administrative Law Judge found that Wilkinson's testimony, unlike that of the employe, seemed "wooden" and "mechanical." The Administrative Law Judge found the employe's testimony to be credible, as well as that of the employe's mother and boyfriend. The Commission notes, too, that it believes it most unlikely that the employe, after having submitted an accident report concerning the injury, would admit to Wilkinson in effect that she had submitted a fraudulent claim. The circumstances surrounding Wilkinson's presence in the employer's Sacramento facility and his denouncement months later of the employe's alleged fraud, finally, are themselves questionable. For these reasons, the Commission agrees with the Appeal Tribunal that the employe did not falsely file an injury claim. Her discharge, therefore, was not for misconduct connected with her employment, within the meaning of section 108.04 (5) of the Statutes.


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