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

LARRY BOYKIN, Employee

UNITED LUTHERAN PROGRAM FOR THE AGING INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01607256MW


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 eligible for unemployment insurance benefits if he is otherwise qualified.

Dated and mailed February 1, 2002
boykila . usd : 164 : 1  MC 618  MC 692.02

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

Laurie R. McCallum, Commissioner


MEMORANDUM OPINION

In the petition for commission review the employer argues that, under DHFS misconduct reporting and investigation notification procedures, the employee would have been notified of the investigation and of the subsequent guilty verdict. The employer's argument fails. The employer had access to DHFS procedures prior to the hearing, but did not present that evidence at the hearing and made no argument that the employee was aware of the charges or finding against him. To the contrary, at the hearing the employer's witness testified that the employee may not have realized the charges were pending, and the employee agreed this was the case. Even if it had been demonstrated that the employee was aware of the matter, this would have no bearing on the outcome of the case. The evidence did not demonstrate that the employee had any obligation to reveal that there were charges pending against him or that he had been found guilty of abuse, and the employer did not allege that he was discharged for failing to notify it of this matter. Rather, the employer contended that it discharged the employee because it could not employ an individual whose name appeared on the Wisconsin Caregiver Misconduct Registry. Because it was not shown that the employee was discharged for any actions on his part which amounted to misconduct connected with his employment for the employer, the appeal tribunal decision is affirmed.

NOTE: Subsequent to submitting its petition for review the employer attempted to supplement the record with several documents that were not presented at the hearing. The employer had an opportunity to present such documents at the hearing, but failed to do so. Because by law the commission is required to base its review solely upon the factual assertions and documentary evidence presented at the hearing before the administrative law judge, the commission has not considered those documents that could have been submitted at the hearing but were presented for the first time in the petition for review.


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uploaded 2002/02/04