BEFORE THE
STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

In the matter of the
unemployment benefit claim of

CHARLES L. CASE, Employe

Involving the account of

SCHOOL DISTRICT OF BELOIT, Employer

UNEMPLOYMENT COMPENSATION DECISION
Hearing No. 89-000940 JV

Pursuant to the timely petition for review filed in the above-captioned matter, the Commission has considered the petition and all relief requested. The Commission has reviewed the applicable records and evidence and finds that the appeal tribunal's findings of fact and conclusions of law are supported thereby. The Commission therefore adopts the findings and conclusions of the appeal tribunal as its own.

DECISION

The decision of the appeal tribunal is affirmed. Accordingly, the employe is eligible for benefits, if he is otherwise qualified.

Dated and mailed July 27, 1989
110 : CD4200  MC 652.4  MC 653.1   PC 714.07

/s/ Kevin C. Potter, Chairman

/s/ Carl W. Thompson, Commissioner

/s/ Pamela I. Anderson, Commissioner

MEMORANDUM OPINION

In its petition for Commission review, the employer argues that the Administrative Law Judge erred in not considering the evidence of the blood alcohol test given to the employe, and that the record in any event supports the conclusion that the employe was discharged for misconduct because it shows that he had been warned against drinking and against being at work with the smell of alcohol about his person, and that despite these warnings both of these situations recurred. The commission has carefully considered these arguments and has found them to be unconvincing.

The blood alcohol content report - The employer argues that the blood alcohol content test result, as evidenced by a short note from a doctor reciting the test findings, should have been found admissible notwithstanding its hearsay nature under either the "statement for purposes of medical diagnosis or treatment" exception to the hearsay rule contained in section 908.03 (4), Stats. or the "record of regularly conducted activity" exception set forth in section 908.03 (6), Stats. The Commission disagrees.

The employer's contention that the blood alcohol test is a statement regarding medical history or present symptoms is correct, but it is not the type of statement that the exception provided for in section 908.03 (4), Stats., contemplates. That exception refers to "statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment". Clearly, this exception contemplates statements by a patient to a doctor concerning the patient's subjective perception of his or her condition. The statement which is objectionable as hearsay in this case is not a statement of the patient, i.e., the employe, but rather a statement of Dr. Chancey. That statement was not "made for purposes of medical diagnosis or treatment", but rather represented the end product, i.e., the actual medical diagnosis.

The employer also urges that the test results constitute a record of a regularly conducted activity within the meaning of section 908.03 (6), Stats. However, no foundation was laid adequate to bring that statement within this exception. It is necessary, for this exception to be applicable, that the custodian of the statement or other qualified witness establish by actual testimony all of the facts necessary to the applicability of the exception. The fact that the employer's personnel director, who is a custodian of all district records, testified that the statement "was the test results of the blood alcohol test taken at the Beloit Clinic" is inadequate. The personnel director could not and did not testify, based on his own personal knowledge, that the written statement of Dr. Chancey concerning the test results was "made at or near the time by, or from information transmitted by, a person with knowledge, all in the course of a regularly conducted activity," within the meaning of section 908.03 (6), Stats. Perhaps the custodian of the clinic records could have testified, with respect to the actual laboratory report, to facts concerning its genesis adequate to establish the applicability of this exception. Clearly, though, the testimony of the personnel director of the employer was inadequate to lay the necessary foundation.

The Commission therefore considers that the statement of Dr. Chancey concerning the blood alcohol content test results was not subject to any recognized exception to the hearsay rule.

The employer further argues that the statement should be admitted nevertheless, since the formal rules of evidence do not apply in proceedings of this nature. While this statement is generally accurate, it is not to be relied on with respect to hearsay problems.

Section 108.09 (5)(a), Stats., provides that:

"The manner in which claims shall be presented, the reports thereon required from the employe and from employers, and the conduct of hearings and appeals shall be governed by general department rules (whether or not they conform to common law or statutory rules of evidence and other technical rules of procedure) for determining the rights of the parties."

Pursuant to this statutory authority, the Department has promulgated Wisconsin Administrative Code Chapter ILHR 140.12 (1), which provides, in pertinent part:

"Statutory and common law rules of evidence and rules of procedure applicable to courts of record are not controlling with respect to hearings. The administrative law judge shall secure the facts in as direct and simple a manner as possible. Testimony having reasonable probative value is admissible; but irrelevant, immaterial and repetitious evidence is not admissible. Hearsay testimony is admissible if the testimony has probative value but no finding made in disposition of an issue may be based solely on hearsay unless the hearsay testimony is admissible under Chapter 908, Stats."

This rule is designed to account for the fact that many parties appear at unemployment compensation appeal tribunal hearings unrepresented and therefore may not be in a position to recognize and assert their rights to object to hearsay evidence. This rule compensates for that by requiring administrative law judges to exercise some restrictive judgment in the consideration of hearsay evidence, even in the absence of an objection.

Where there is an objection interposed to hearsay testimony, however, there is all the more reason to be hesitant to give weight to the evidence unless it is admissible under the hearsay rule. In Outagamie County v. Town of Brooklyn, 18 Wis. 2d 303, 312, 118 N.W. 2d 291, 296 (1962), the Wisconsin Supreme Court said:

"Without deciding under what circumstances hearsay evidence may be admissible before an administrative agency, we hold that it should not be received over objection where direct testimony as to the same facts is obtainable."

In this case, counsel for the employe timely objected on hearsay grounds to the employer's attempt to introduce the blood alcohol content test results. Under the rule enunciated in the Outagamie County case, the admissibility of that evidence given the existing exceptions to the hearsay rule would be determinative of whether it could be considered, Since the evidence was not admissible under any exception to the hearsay rule, and since it was properly objected to at hearing, the Commission considers that it is appropriate to disregard the evidence.

Misconduct -- The employer asserts that the employe was guilty of misconduct in that he appeared at work with the smell of alcohol about his person, and admitted to having engaged in drinking on the previous evening while off duty, in the face of warnings that he should not engage in such conduct. However, in the absence of any competent proof that the employe was actually under the influence of alcohol while at work, the Commission is unwilling to find that the employe engaged in misconduct within the meaning of section 108.04 (5), Stats., merely because of off duty drinking and a smell about his person while on duty.

The employer did not prove that the smell of alcohol about the employe's person had any detrimental affect on his ability to perform his job duties. Similarly, the employer did not prove that the employe's off duty drinking had an impact on his ability to perform his job. The fact that the employer had previously warned the employe against drinking off duty and against having the smell of alcohol about him while at work would not suffice to make the employe's actions misconduct when there was nothing about them that would have been contrary to the employer's interests in the first place. Although the employer seemed to suggest that the mere fact of having a smell of alcohol would be misconduct, the Commission cannot agree, particularly where evidence indicates that the smell of alcohol may have been an unavoidable by-product of the employe's medically required use of an inhaler in connection with emphysema. The employer was also unable to demonstrate any interest it had in insuring that the employe did not engage in drinking off duty that was not connected with its admitted interest in seeing to it that his off duty drinking did not impair his ability to work. However, because the employer failed to demonstrate that any off duty drinking did impair the employe's work, any such off duty drinking cannot be found to have been misconduct.

The employer's personnel policies expressly prohibited the use of alcoholic beverages by employes during working hours, being at work while under the influence of an intoxicant, or the illegal use or illegal possession of drugs or controlled substances during work hours. This was the sum and substance of the employer's disciplinary policies concerning the use of alcohol and intoxicants. Clearly, the employer's policies did not prohibit employes from having the smell of alcohol about their person while at work, or from engaging in consumption of alcoholic beverages while off duty as long as they were not under the influence of intoxicants at work.

Clearly, the employer in this case terminated the employe, not because of an abstract concern about a smell of alcohol on his breath or a continuation of off duty drinking, but because of a belief that the employe had violated the personnel policy against being at work while under the influence of an intoxicant. However, the employer was unable to prove, by competent evidence, that the employe had in fact been under the influence of an intoxicant while at work. For this reason, the Commission concludes that the employer failed to meet its burden of proving that the employe engaged in misconduct connected with his employment.

cc: Terrence T. Monahan, Attorney
Forbeck & Monahan, S.C.

Robert H. Buikema, Attorney
Davis & Kuelthau, S.C.

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