ANDREW J MAXFIELD, Employee

CONSOLIDATED FREIGHTWAYS CORP OF DELAWARE, Employer

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.

The decision of the administrative law judge is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 13 of 2001, and until seven weeks have elapsed since the end of the week of discharge and the employee has earned wages in covered employment performed after the week of discharge equaling at least 14 times the employee's weekly benefit rate which would have been paid had the discharge not occurred. The employee is required to repay the sum of $4,299 to the Unemployment Reserve Fund. The initial benefit computation is hereby set aside.

Dated and mailed September 14, 2001
maxfian . usd : 105 : 8  MC 651.2  MC 653.2  PC 714.10 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

The employee asserts that the employer did not have a prohibition against off-duty drug use. The employer specifically testified that it did have such a prohibition, and that is the better evidence in the case. In addition, the contractual agreement between the employer and the employee's collective bargaining representative specifically stated that an employee who tested positive would be subject to discharge. The agreement does not require a showing of on-the-job use or impairment. The employee thus should have known that he was subject to discharge even for off-duty usage, should he test positive.

The employee also challenges the administrative law judge's finding that the employee did not establish inability to refrain from the use of controlled substances. That is not a conclusion a lay person competently may reach, however. It is a medical conclusion and, as such, must be established by certified medical evidence from a health care professional. The employee did not submit such evidence at the hearing; nor did he return the UCB-474 medical report form sent to him by the hearing office for his physician to fill out. The employee thus has not established, despite opportunity to do so, that he in fact could not refrain from the use of the controlled substance in question.

For these reasons, and those stated in the appeal tribunal decision, the commission has affirmed that decision.

cc: 
Sheakley Uniservice, Inc.
Consolidated Freightways (Milwaukee, Wisconsin)

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uploaded 2001/09/17