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

DEBRA A ROBINSON, Employee

LIFECARE HOMES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01602305MW


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 ineligible for benefits beginning in week 8 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.

Dated and mailed October 30, 2001
robinde . usd : 132 : 8  PC 714  PC 740  MC 610.25 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The employee maintains that the fact that DHFS determined that there was no substantiated caregiver abuse means the employer cannot prove by the "clear and convincing" standard that the employee engaged in such abuse. The commission disagrees. As noted by the employer, under Wis. Stat. § 108.101(4) such finding is not binding in an unemployment insurance proceeding. The finding certainly can be admitted into an unemployment insurance hearing, it is simply not binding. However, after the hearing the employee must show that the evidence, if considered, would probably cause the commission to reach a different result. The commission concludes it would not.

In this case, the employer presented two eyewitnesses to the employee's actions. The employer also testified that the resident reported the abuse. The resident's reporting is further support for the eyewitness testimony. The employee did not credibly demonstrate that the employer was seeking to discharge her for other reasons. The employee has not proven that the two eyewitnesses lied at the hearing. Neither the department nor the commission can turn over its fact-finding duties to another administrative body. The commission must base its decision on evidence that is presented under oath at the hearing before the administrative law judge. Presumably DHFS must base its decision on evidence that it gathers. The argument that the employee's actions did not constitute abuse under the administrative code is rejected. That the resident was only "a little scared" by the employee's intentional conduct is sufficient to establish abuse.

The case of Thomas v. Innovative Family Partnership, Inc., UI Dec. Hearing No. 00602702MW (LIRC Aug 10, 2000), is distinguishable. In Thomas, the employer contacted the Bureau of Regulation and Licensing and was told that, under the Caregiver Law, Wis. Stat. §§ 48.685 and 50.065, it could not employ an individual against whom a substantiated finding of abuse had been made. The existence of the finding was the basis for the separation. Further, the employee in Thomas admitted the underlying conduct that led to the finding of abuse.

For the above reasons, and for the reasons set forth in the appeal tribunal decision, the commission affirms that decision.

cc: 
Attorney Karyn Rotker
Attorney Sean M. Scullen


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uploaded 2001/1/05