JACKIE K COOPER, Employee
The Labor and Industry Review Commission found that in the week ending December 30, 2000 (week 53) Cooper was discharged for misconduct connected with his employment within the meaning of Wis. Stat. § 108.04(5). Unemployment benefits were denied. Cooper appealed the commission's decision to the Grant County Circuit Court. The court remanded the matter to the commission for further proceedings and specifically for the commission to make findings of the activity Cooper engaged in and how that activity constituted misconduct. The commission concludes that the record created at the hearing held on February 13, 2001, provided the parties with the opportunity to present their case and that it is sufficient to allow the commission to enter an order which meets the requirements of the decision of the Grant County Circuit Court.
The commission has reviewed the record and the evidence submitted to the administrative law judge. Based on its review, and pursuant to the decision of the circuit court, the commission makes the following:
Cooper worked as a temporary employee of 3M beginning in March or April 2000. Cooper became a Manpower employee on May 11, 2000. He worked at an assignment at 3M in Prairie du Chien, Wisconsin. He worked on the second shift on Friday, Saturday and Sunday.
At about noon on Friday, November 17, 2000, Cooper was told, in a telephone
conversation, that his shift was going to change on November 25, 2000 and that
he would be transferred to one of two openings. As a result of this change his
hours would be reduced. Cooper reported to work on Friday, November 17, 2000,
at 2:00 p.m. After talking to his supervisor, Cooper called Manpower and told
them that he would accept the transfer to the opening that was available.
On November 17, 2000, Cooper worked in the belt fabrication department. At about 3:30 p.m. Cooper slipped on a piece of belting and fell three steps from the belt fabricating table to the concrete floor. Cooper went to the emergency room and was treated. He was given a shot of morphine to help with severe pain. He was also given a leg brace and crutches and instructed to ice his leg and keep it elevated. He was told to return for a reevaluation in one week and not to work during that week.
The Wisconsin gun deer season opened on Saturday, November 18, 2000. Cooper had purchased a deer-hunting license for the season. Cooper stated that he did not hunt at any time during the gun deer season but he registered four deer that his brother shot for him.
Cooper said that, on November 18, 2000, he sat in a 26 foot self-contained motor home that he owned and that was parked on property owned by his brother. He stated that it was possible to drive up very near the motor home and it was no problem to get to the motor home on crutches. He was in the motor home from approximately 6:30 a.m. until 9:00 a.m. Cooper stated that he was in eye and voice contact with his brother when his brother shot a deer during that time. Cooper and his brother then went to Patch Grove, Wisconsin to register the deer that his brother had shot. Cooper registered that deer. After registering the deer, Cooper's brother took Cooper home. On the way to Cooper's home they saw some deer in a field and Cooper's brother shot one. They registered that deer on the same day in Cooper's name with one of Cooper's tags.
On November 23, 2000, Thanksgiving Day, Cooper was in his motor home on his brother's land from about 6:30 a.m. to 8:30 a.m. Cooper's brother shot a deer and put Cooper's tag on it and they registered the deer in Cooper's name that day. Cooper's brother then took Cooper home. When they arrived at Cooper's home, Cooper's son told them that there were deer above the house. Cooper's brother went up a hill and shot another deer at about 10:00 a.m. Cooper registered that deer on November 26, 2001. He stated that he waited three days to register that deer because he was tired. He later stated that he waited to register that deer because he had to wait until someone could drive him to the registration station.
The employer discharged Cooper by letter dated December 28, 2000. The discharge was due to Cooper's falsification of a claimed work injury.
A department investigator contacted Cooper on January 5, 2001, and asked about his deer hunting activity. Cooper stated he was not deer hunting and it made no difference to him if he ever shot a deer. He said he was never out in the woods deer hunting and that all he did was go to the registration station and register the deer. He did not tell the investigator that he was in a motor home and his brother was hunting nearby. He was inconsistent about the location where the deer was shot. Additionally, he testified that the last deer was shot on November 23, 2000, but when he filled out the DNR paperwork he indicated that the date of the kill was November 26, 2000.
A number of factors cause the commission to doubt Cooper's testimony. He hurt himself the afternoon prior to opening day of deer hunting. He hunted for no more than two and one-half hours on November 18, 2000, and his brother was able to shoot one deer within eye and voice contact of the trailer where Cooper was located. The brother was then able to shoot another deer on the way home within eye and voice contact of their vehicle. Cooper testified that the last deer was shot on November 23, 2000, but the DNR tag indicated it had been shot on November 26, 2000. He gave inconsistent reasons for delaying registration of that last deer. He did not explain the circumstances of his hunting to the department representative when he was interviewed. His statement to the department representative suggested that he was not out hunting at all, with or without his brother.
The commission rejects Cooper's statements concerning his lack of active participation in deer hunting. The commission finds that the killing of four deer and tagging them with Cooper's tags in the short period of time that Cooper says was involved must have required physical activity on Cooper's part that is not consistent with Cooper's statements concerning his activity. The shooting and tagging of two of the four deer occurred within 24 hours after Cooper's workplace injury. The shooting and tagging of the last two deer either required significant activity on November 23, 2000, or required him to have been hunting on November 23 and November 26, 2000. Either of those alternatives suggests that the information that he provided during his medical exam on November 24, 2000, was not truthful. The commission finds that Cooper's statements concerning the extent of his injury were not truthful and amounted to falsification of a claimed work injury.
Under the circumstances, the commission finds that Cooper's actions in hunting when he was unable to work for medical reasons were deceitful and demonstrated such a wilful and substantial disregard of the employer's interests as to meet the standard for misconduct connected with his work. The commission therefore finds that in week 53 of 2000 the employee was discharged for misconduct connected with his employment within the meaning of Wis. Stat. § 108.04(5).
The commission further finds that the employee was paid benefits for weeks 53 of 2000 through week 15 of 2001, amounting to a total of $3,751.00 for which he was not eligible and to which he was not entitled, with in the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), the employee 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), be cause although the over payment did not result from the fault of the employee 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.
The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 53 of 2000, 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 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 $3751.00 to the Unemployment Reserve Fund.
For purposes of computing benefit entitlement: Base period wages from work for the employer prior to the discharge shall be excluded from any computation of maximum benefit amount for this or any later claim. If the employee was also paid base period wages from work by other covered employers, the excluded wages shall be used to determine benefit eligibility. However, any benefits other wise chargeable to a contribution employer's account shall be charged to the fund's balancing account.
Dated and mailed May 2, 2002
coopeja2 . upr : 160 MC 630.07
/s/ David B. Falstad, Chairman
/s/ James A. Rutkowski, Commissioner
/s/ Laurie R. McCallum, Commissioner
Appealed to Circuit Court. Affirmed October 9, 2002. [Summary of Circuit Court decision]
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