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

DENNIS E  PATRICK, Employee

MIDWEST PRODUCTS & ENGINEERING INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing Nos. 00608243MW


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 makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for about a year and a half as a material handler for the employer, a manufacturer of medical equipment. His last day of work was April 30, 2000 (week 19) and he was discharged on May 5, 2000 (week 19).

The issue to be decided is whether the employee's actions, which led to the discharge by the employer, constitute misconduct connected with his employment.

About four days prior to his last day of work, the employee fell and knocked himself out.

Thereafter the employee failed to focus on his work. On his last day of work, he reported to work in the morning. He was wearing someone else's jacket and had dimes in his ears. He was sent home about 11:00 a.m. Shortly after midnight the employee returned to the facility. He had been in the office. He left the employer's premises and returned serveral times. He used a co-worker's key card to get into the building and the office. He opened filing cabinets and drawers.

The following morning the employee reported to work. When he arrived he was told that he could not work because the employer was investigating his situation. He was escorted from the building and the police department was called. While the police were discussing the matter the employee went to several branches of the employer' bank and attempted to withdraw $400,000 from the employer's account. The police took him into custody. He was taken to an emergency room for treatment and then remanded to custody until Wednesday. He was immediately taken to a hospital where he remained for two days. The employer discharged him on May 5, 2000 (week 19) for his actions.

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' with in the meaning of the statute."

The employer contended that the employee's actions, including gaining access to unauthorized areas of the workplace, being at the workplace when he had been told to go home, and attempting to withdraw $400,000 from the employer's account, amounted to misconduct. The commission agrees.

The employee's actions in using co-worker's cards to gain access to buildings that his own card would not allow him access to, had the effect of circumventing the employer's security measures. In addition, attempting to withdraw such a large amount of money from the employer's bank account is clearly detrimental to the employer's interests.

The employee asserted that his actions were the result of a medical condition, specifically that he sustained some type of concussion when he fell down the stairs and his behavior was a result of this incident. However, the employee worked three shifts after his fall, and yet his egregious behavior did not start until the fourth day. In addition, it seems extremely unlikely that his behavior was as the result of a fall. The commission did remand this case to allow the opportunity to present medical evidence. The employee attempted to obtain such evidence but was unable to. The commission cannot make a medical determination that the employee's aberrant behavior was the result of any medical condition in the absence of evidence by a medical professional. This is the case even where as here the employee had attempted to obtain this information and was unable to do so. As a result, the commission concludes that the employee's actions, for which he was discharged, demonstrated such a wilful and substantial disregard of the employer's interests as to amount to misconduct connected with his work.

The commission therefore finds that in week 19 of 2000, the employe was discharged for misconduct connected with his employment within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employe was paid benefits for weeks
20 through 46 of 2000, amounting to a total of $7976 for which he was not eligible and to which he is not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), the employe is required to repay such sum to the Unemployment Reserve Fund.

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c), because although the overpayment did not result from the fault of the employe as provided in Wis. Stat. § 108.04(13)(f), the overpayment was not the result of a department error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 19 of 2000, 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. He is required to repay the sum of $7976 to the Unemployment Reserve Fund.

Dated and mailed October 2, 2001
patride . urr : 145 : 3  PC 714.10

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission discussed witness credibility and demeanor with the ALJ who held the hearing in this matter. The ALJ found credible the employee's testimony that his actions were the result of a medical condition because he believed the employee's actions were so bizarre that there could be no other reason. The employer's witness agreed that the employee was acting strangely. Further, there was no evidence that the employee had acted in any such manner prior to the day in question. However, the commission, as noted above, believes that this is a medical determination it does not have the expertise to make.

NOTE: If the employee is able to obtain certified medical evidence that some physical or mental condition caused or contributed to his behavior on April 30 and May 1 he should send this information to the commission within a reasonably short period of time. If he does so, the commission will consider whether, based on the information sent by the employee, to take further action in this case.


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uploaded 2001/10/09