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

MIKEL J BIRCH, Employe

BRITTINGHAM & HIXON LUMBER CO, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 96005385BO

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 four years as a yard laborer at a retail lumber yard operated by the employer. His last day of work was September 11, 1996 (week 37).

The employe injured his right knee shortly before closing time on his last day of work. The employe injured his knee by turning, while locking a door. As he was turning to walk back, his knee popped. The employe reported this to the manager on September 11. The employe saw a doctor the next day, who told him to stay off his knee.

The employe was off work and received worker's compensation benefits as a result of the injury, which required surgery to repair. The employer later received information indicating that the injury had occurred during a horseplay incident a few minutes before the employe went to lock the door. The employer discharged the employe on October 25, 1996 (week 43) for filing a false report of the work injury.

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

The employer asserted that the employe's actions in falsely reporting his injury, amounted to misconduct. However, the commission disagrees.

While giving a false report about a work injury would normally amount to misconduct, in this case, the employer must establish, by clear and convincing evidence, that the employe did give a false report. The employe denied giving a false report, and denied that he had injured his knee by stepping or falling between piles of materials. The commission found his assertions to be credible. The manager testified that prior to this, he had not questioned the employe's integrity. The employer's witness did not actually see the incident which he believed caused the injury. The employe evidently reported the turning incident to his medical practitioners, and would be likely to report this incident accurately to obtain the best medical care. Assuming however, that the employe would fabricate such a story, one would have to assume that the employe was aware that there might be potential problems with a workplace injury which resulted from horseplay. The employe's supervisor, a 32 year worker, was evidently not aware that this was the case. The foreman testified that he was driving the forklift and placing nickels under the forks, and that the employe kicked the nickels out of the way, and left the area. The foreman went in search of him with the forklift. The foreman testified that there was no work purpose in looking for the employe. The foreman believed that the employe was trying to hide from him, however, the employe denied that he was trying to hide and stated that he was simply straightening the Styrofoam. Finally, as noted by the ALJ, the foreman was an inarticulate witness, and though he may have been credible, he did not actually see the employe hurt himself.

The yard laborer testified that he saw the employe on the insulation, and that there was a work reason to be on top of it to straighten the sheets of plywood that were used to hold the stacks down. Thus, assuming that he did in fact injure himself by jumping off the insulation, if he had a reason to be on the insulation, there was no reason for him to fabricate testimony about hurting himself by turning after locking a door. The yard laborer further testified that he saw the employe jump down from the insulation and did not appear to be injured. However, when the yard laborer saw him later, he was limping. Under the circumstances, the commission cannot conclude that the employe injured himself and then fabricated the circumstances surrounding the injury when he reported that injury to the employer. Therefore, the employe's actions did not evince such a wilful, intentional and substantial disregard of the employer's interests as to constitute misconduct connected with his employment.

The commission therefore finds that in week 43 of 1996 the employe was discharged but that the discharge was not for misconduct connected with his work, within the meaning of Wis. Stat. § 108.04 (5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is eligible for benefits beginning in week 43 of 1996, if he is otherwise qualified.

Dated and mailed: March 6, 1998
birchmi.urr : 145 : 1 MC 630.07

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission discussed witness credibility and demeanor with the ALJ, who explained that he credited the testimony of the foreman because while he had some difficulty in speaking articulately, he was unprepared to testify, as the employer originally did not bring him to the hearing. The ALJ further noted that he appeared extremely guileless. The ALJ did not note anything obvious which would impact the employe's credibility one way or the other. The commission might agree that the foreman was being truthful when he testified about his perception of the situation. However, the commission found the employe's testimony and that of Mr. Romberg to be credible for the reasons stated in its decision.

cc: ATTORNEY MARY J ANGELOS
ANGELOS LAW OFFICE

BRITTINGHAM & HIXON LUMBER CO

ATTORNEY JERRY GREGG

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