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


VERNARD BROOKS, Employe

MASTER LOCK CO, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 97603203MW


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

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked for about eight years as an assembler for the employer, a manufacturer of padlocks. He was discharged on March 21, 1997 (week 12).

The issue to be decided is whether the employe's discharge was for misconduct connected with the employe's employment.

The employer's handbook contains established rules of conduct, and dishonesty is a major violation, which includes discharge as a punishment. The employer's normal procedure is to discharge workers for lying, although it could impose other discipline, in the interests of uniformity. All workers are given a copy of the handbook and sign for it.

The employe had problems with a ganglion cyst, in early 1997, and had surgery on January 13, 1997. In mid-February of 1997, Dr. Boyle, who was treating the employe, told the employe not to return to work because he did not want him to use his right hand for repetitious movement.

The employe was also being seen by Dr. Kurt Hegmann, after the surgery. Dr. Hegmann determined that it was improbable that the employe had as much pain as described, considering the amount of time that passed between the surgery and the office visit. Dr. Hegmann opined that a ganglion cyst removal is a very minor procedure, and a person should be off one or two days after surgery, and then on light duty, if such was available. In two to three weeks, a person could normally exert ten pounds, and six weeks later, there should be pretty complete recovery. Dr. Hegmann believed that there were exaggerated features on the employe's physical exam, such as not moving the hand at all, and the employe had superficial tenderness where it should not be.

The employe saw Dr. Hegmann again on March 11, 1997, and the employe told Dr. Hegmann that he could not turn the steering wheel of his car with the right hand. The employe in fact stated that he could not use the right hand at all, and tried to turn the wheel with the left hand. The employe stated that he could not carry anything at all.

The employer obtained a video tape of the employe, in which he was seen carrying a small window, in a pinch grip, and driving a car. Dr. Hegmann saw the video, and testified that in the video, the employe did not guard his hand. The manner in which the employe carried the window used static exertion, which Dr. Hegmann opined was about as hard a task as one could have. Yet, the employe did not stop and shift the window to the other hand, or carry it in both hands. The employe also told Dr. Hegmann that he was unable to open doors with his right hand, and Dr. Hegmann saw him doing that repeatedly on the tape, yet he never winced or avoided the use of that hand.

About one week before the employe was discharged, the employer's human resource manager met with the employe, and the employe told the human resource manager that he could do some things, such as eat, drink a glass of water, get dressed, but that he could not do buttons, pinch or remove his shoes because of holding and twisting. He stated that he could carry some objects with his right hand, but that his grip was not what it should be.

The employer had work available for the employe if he were to be released to return to work with reasonable restrictions.

The employer contended that the employe was discharged for attempting to extend his leave by misrepresenting the extent of his disability to the doctor. The commission must agree. The employe informed the doctor that his ability to use his wrist was extremely limited, and Dr. Hegmann, after viewing the video tape, determined that the employe had inaccurately represented his condition. The employe explained at hearing that he was told by his doctor to try doing more with his hand, however, he informed Dr. Hegmann that he could not use his right hand at all and Dr. Hegmann noted that he exhibited no pain behaviors while driving, opening doors or carrying the window.

The employe's failure to accurately represent his medical condition, and his ability to Dr. Hegmann, during the time that he was on a paid medical leave of absence, amounted to such a wilful and substantial disregard of the employer's interests as to constitute misconduct connected with his work.

The commission therefore finds that in week 12 of 1997 the employe was discharged for misconduct connected with his employment within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employe was paid benefits for weeks 14 through 39 of 1997 amounting to a total of $6,396.00 for which he was not eligible and to which he is not entitled, within the meaning of Wis. Stat. § 108.03 (1), Stats. Pursuant to Wis. Stat. § 108.22 (8)(a), the employe 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), because although the overpayment did not result from the fault of the employe 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.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is ineligible for benefits beginning in week 12 of 1997, 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 $6,396.00 to the Unemployment Reserve Fund. The initial benefit computation (Form UCB-700) issued on March 31, 1997, is set aside. If benefits become payable based on other covered employment 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 employe 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: March 4, 1998
brookve.urr : 145 : 8  MC 630

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission discussed witness credibility and demeanor with the ALJ, who stated that he did not believe that the employe had a motive to lie about his ability to perform certain tasks, because the mere fact that the employe could do some lifting and gripping did not mean that the employer would put the employe back to work. Further, the employer did not disagree with the employe's contention that the work was repetitious. Finally, the employe told the employer that he could do some gripping, while Dr. Hegmann indicated that the employe told him that he could do no lifting or grasping. Thus, the ALJ credited the employe's assertion that he had been told by his doctor to try doing more with his hand, and that he attempted to accurately inform the employer and Dr. Hegmann of what he could do. The commission disagrees with the credibility determination made by the ALJ for the reasons stated in the body of its decision.

cc:
ATTORNEY CHARLES P STEVENS
LINDNER & MARSACK SC

ATTORNEY BRENDA LEWISON


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