STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

JAMES P. TREW, Employee

PATRICK CUDAHY INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 93606393MW


On July 28, 1993, the Department of Industry, Labor and Human Relations (department), issued an initial determination which held that the employe was discharged for misconduct connected with his employment. The employe timely appealed. On September 22, 1993, a hearing was held on this matter before an administrative law judge. On October 11, 1993, the administrative law judge issued his appeal tribunal decision, reversing the initial determination, finding that the employe was discharged but not for misconduct connected with his employment. The employer timely petitioned the commission for review of the appeal tribunal decision.

Based upon the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked approximately 7 months as a parts coordinator in the maintenance department for the employer, a meat processing company. The employe's last day of work was July 13, 1993, (week 23).

Sometime between May 14 and June 16, 1993, the employe was involved in an in-patient alcohol rehabilitation program. The employe continued with follow up and was released to work in June. After the employe entered the in-patient treatment program, the employe and the employer entered into a last chance agreement by which the employe pledged to abstain from drinking alcohol as long as he was employed by the employer. The employe was absent on July 12 and came to work on July 13. He was therefore subject to a urine analysis test. He complied and it came back positive for alcohol. The employe admitted drinking in violation of the pledge during the weekend. He additionally admitted to a violation of the pledge the previous weekend as well. Based upon his violations of the pledge and the last chance agreement, the employer discharged the employe.

The issue for review is whether the employe's discharge is for misconduct connected with his employment. In Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249, 296 N.W. 636 (1946), 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 goodfaith errors in judgment or discretion are not to be deemed 'misconduct' within the meaning of the statute."

The administrative law judge found that the employe's discharge was not for misconduct because the employe submitted medical evidence to establish that he was chemically dependent on alcohol. The employe submitted a UCB-474 (medical form) prepared by a doctor during the employe's in-patient treatment. The treating physician did not answer the question whether the employe could abstain from the use or consumption of alcohol although he listed the employe's diagnosis as "chemical dependency." The report also indicated that the employe was able to return to work full-time without any restrictions on July 20, 1993. The employe also submitted a UCB-474 prepared by his alcohol and drug counselor. The alcohol and drug counselor indicated that the employe could abstain from the use and consumption of alcohol which caused his condition if the employe's motivation was great enough. The medical form also indicated that the employe was able to work full-time without restrictions as of July 20, 1993.

The commission and the courts have held in the past that when an employe's alcoholism makes it impossible for him to control his drinking or conform his actions to the requirements to conformance of a "last chance agreement," the consumption of intoxicants while harmful to an employer's interests, does not amount to a wilful or intentional act amounting to misconduct. Decisions to that effect are based upon the Supreme Court's conclusions that alcoholism is a disease. Connecticut General Life Insurance Company v. DILHR, 86 Wis. 2d 393 (407) (1979). However, the court went on to state that a diagnosis of alcoholism is a matter of expert medical opinion to be proven by a physician, not a layman.

In this case, the record does not demonstrate that the employe produced sufficient medical evidence necessary to render a diagnosis concerning alcoholism under Connecticut General. See also, Brown County v LIRC and Marge Gajewski, Brown County Circuit Court Case No. 90-CV-1490, 3/14/91.  In Brown County, the circuit court remanded the matter to the commission because the record lacked sufficient medical evidence that the employe could not control her alcoholism. In Brown, the employe submitted a UCB-474 prepared by her alcohol counselor. Here, the employe also submitted a UCB-474 from his alcohol counselor. However, because social workers and counselors are not medical experts, their opinions have generally been disregarded as non-medical opinions regarding an employe's ability to abstain from drinking. And as noted above, the employe's treating physician who prepared the UCB-474 during the employe's inpatient treatment did not answer the question of whether the employe could abstain from the use or consumption of alcohol. The commission therefore concludes that the medical evidence produced by the employe is insufficient to support the conclusion that the employe lacked the ability to abstain from drinking.

Concluding that, the commission examines the employe's admissions regarding his violations of the pledge not to drink while an employe for the employer. The commission considers the employe's violations to be an intentional disregard of the employer's interests and the standards of conduct the employer had a right to expect of the employe. This is especially true in light of the last chance agreement that the employe and the employer entered into after the employe's release from his in-patient treatment program.

The commission therefore finds that in week 29 of 1993, the employe was discharged for misconduct connected with his employment, within the meaning of section 108.04 (5), Stats. The commission further finds that the employe was paid benefits in the amount of $2,932, for which he is not eligible and to which he is not entitled, within the meaning of section 108.03 (1), Stats. Pursuant to section 108.22 (8) (a), Stats., he is required to repay such sum to the Unemployment Reserve Fund.

DECISION

The decision of the appeal tribunal is reversed. Accordingly, the employe is ineligible for benefits beginning in week 29 of 1993, and until seven weeks have elapsed since the end of the week of discharge and he has earned wages in covered employment performed after the week of his discharge equaling at least 14 times his weekly benefit rate which would have been paid had the discharge not occurred. He is required to repay the sum of $2,932 to the Unemployment Reserve Fund.

Dated and mailed June 15, 1994
135 : CD8799  MC 651.5   MC 692.02  PC 714.10 

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

 

NOTE: This reversal is as a matter of law. It does not depend upon any credibility resolution different from that of the administrative law judge. The commission does not believe that the employe's medical evidence proves that he could not abstain from the use or consumption of alcohol. Consequently, the commision concludes the employe's actions were an intentional disregard of the employer's interests and standards of conduct the employer had a right to expect of the employe, thereby establishing misconduct.

 


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