DARLENE MECIKALSKI, Employee

AURORA HEALTH CARE INC, Employer

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 makes the following:

The employee worked one and one-half years as a phlebotomist for the employer. Her last day of work was July 24, 2001, when her doctor took her off work. The employer discharged her on August 28, 2001 (week 35).

In January of 2000, the employee completed a "preplacement health screening form." Exhibit 2. On that form the employee was asked, "ever had an accident or injury requiring medical treatment or lost time from school or work?" The employee checked "no." The employee was further asked, "ever had a work restriction because of health problems in the past ten years?" The employee checked "no." The form further asked, "do you now have, or have you sought medical care for" a variety of problems including joint and back pain. The employee did not indicate any back or joint pain. She did note that she had broken an ankle in 1991. On her employment application the employee omitted her employment with Franciscan Shared Lab.

In July of 2001 the employee fell at work and injured her knees and elbows. She was placed on work restrictions. On July 11, 2001, the employer's employee health nurse asked the employee if she had other prior injuries to her knees or elbows. The employee responded that she had not. The employer conducted a worker's compensation search at that time. The employer discovered that the employee had previous injuries and medical treatment due to work-related accidents.

In September of 1997 the employee slipped and fell while performing work for Consulting Lab Services. The employee received medical treatment and was off work for two to three weeks. In either November of 1998 or December of 1997 the employee was injured while working for Franciscan Shared Lab. The employee was in an auto accident and sustained injuries to, among other things, her ribs, ankles and right knee. The employee was off work two to three weeks. She was let go because she was on light duty and Franciscan Shared Lab would not allow her to work with light-duty restrictions.

On August 28, 2001, two members of the employer's human resource department met with the employee. The employee was questioned about her responses on the preplacement health screening form. The employee indicated that she had not placed the above information on the form because she had forgotten. The employer discharged the employee that same day for falsification of the preplacement health screening form and her employment application.

The issue to be decided is whether the employee was discharged for misconduct connected with her employment.

In Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249, 296 N.W. 636 (1941), 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 good-faith errors in judgment or discretion are not to be deemed 'misconduct' with in the meaning of the statute."

The employee maintained that at the termination meeting she told the employer that she did not mean to check "no," she meant to check "yes," when responding to the question whether she had an accident or injury requiring medical treatment or lost work time. The employee maintained that at the termination meeting she told the employer that she did not put the slip and fall incident on the form because she figured the employer was aware of it because it occurred while she was working for the employer through a temporary help agency. The employee maintained that she told the employer at the termination meeting that she forgot about the auto accident when completing her application, but informed the employer that she noted the auto accident on her application, and had sustained no permanent injuries. The employee asserted that the employer refused to provide her with that application. The employee testified at the hearing that at the time she completed the preplacement health form she did recall the auto accident but inadvertently checked "no" instead of "yes," and that she tried to explain that to the employer.

The commission does not credit the employee's explanations. The employer's witnesses credibly testified that the employee's only justification at the termination meeting for omitting the information about her prior accidents, medical treatment, and injuries was that she forgot. The employee did not tell the employer that she inadvertently failed to note her prior medical care which resulted in lost work time. The employee did not explain that she omitted the slip and fall incident because she thought the employer was aware of it. The employee did not tell the employer that she had listed her auto accident on her application.

The employee further contended that she did put her employment with Franciscan Shared Lab on her job application. The commission likewise does not credit such contention. The employee listed her employer's chronologically. Franciscan Shared Lab does not appear in its proper place chronologically or anywhere else on the application. The commission credits the testimony from the employer's placement specialist that the only reason the employer numbers go from 5 to 12 is that the employer ran out of forms for numbers 6 through 11.

The commission further rejects the employee's contention at the hearing that she did not report her prior back or joint pain because she only had it for a short time and thought the question only was asking if she was still experiencing trouble. The question asked was unambiguous and not reasonably susceptible to the interpretation the employee claimed to have placed on it. The question asked, "Do you have now, or have you sought medical care for any of the following?" Finally, the employee's testimony does not explain why she thought it necessary to indicate that she had an ankle injury 10 years earlier. Finally, the employee's failure to inform the employee health nurse of her prior injury to her knee when specifically questioned on July 11, 2001, further places the employee's credibility in doubt.

The employer was entitled to inquire into the employee's past medical history to determine that she was able to perform the duties of her position and to determine whether any accommodations or restrictions might be necessary. The employer was entitled to honest responses to its inquiries. The employee intentionally withheld information about her past employers, injuries, medical treatment, and work restrictions when completing her employment application and her preplacement screening health form. Such conduct evinced an intentional and substantial disregard of standards of behavior the employer had a right to expect of the employee.

The commission therefore finds that in week 35 of 2001 the employee was discharged from her employment and for misconduct connected with her work within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits in the amount of $9,721.00 for weeks 38 through 52 of 2001, and weeks 1 through 23 of 2002, for which the employee was not eligible and to which the employee was not entitled, within the meaning of Wis. Stat. § 108.03(1).

The final issue to be decided is whether recovery of overpaid benefits must be waived.

Wisconsin Statute § 108.22(8)(c), provides that the department shall waive the recovery of overpaid benefits if the overpayment was the result of departmental error, and the overpayment did not result from the fault of the employee. Under Wis. Stat. § 108.02(10e)(a) and (b), department error is defined as an error made by the department in computing or paying benefits which results from a mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, or from misinformation provided to a claimant by the department, on which the claimant relied.

The overpayment in this case results from the commission's reversal of the appeal tribunal decision. Such reversal was not due to department error as defined in Wis. Stat. § 108.02(10e)(a) and (b).

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c), because although the overpayment 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 35 of 2001, and until seven weeks elapse since the end of the week of discharge and the employee has earned wages in covered employment equaling at least 14 times the weekly benefit rate which would have been paid had the discharge not occurred. The employee is required to repay the sum of $9,721.00 to the Unemployment Reserve Fund. The initial benefit computation (Form UCB-700) issued on September 17, 2001, is set aside. If benefits become payable based on work performed for other employers a new computation will be issued as to those benefit rights.

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 otherwise chargeable to a contribution employer's account shall be charged to the fund's balancing account.

Dated and mailed August 28, 2002
mecikda . urr : 132 : 1 : MC 630.09

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

The commission did consult with the ALJ who presided at the hearing regarding his impressions of witness credibility and demeanor. The ALJ credited the employee's testimony, as he did not believe she was motivated to conceal the information given the lack of permanent restrictions or ongoing treatment for the prior injuries, although he conceded her testimony was self-contradictory. The ALJ further noted that the employee had disclosed that she left Cooper Power Systems because she became ill from chemicals at the workplace. The commission disagrees with the ALJ's credibility determination for the reasons set forth above. Further, the employee had sustained no actual injury from Cooper Power Systems, had not sought medical treatment because of her employment at Cooper Medical Systems, and had not been off work and on restricted duty due to any accident or injury at Cooper Power Systems.

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will withhold benefits due for future weeks of unemployment in order to offset overpayment of U.I. and other special benefit programs that are due to this state, another state or to the federal government. Contact the Unemployment Insurance Division, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the overpayment.

cc: 
Aurora Consolidated (West Allis, Wisconsin)
Attorney Thomas M. Domer

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