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

RICHARD C CLARK, Employee

REYNOLDS WHEELS INTL, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02005123JV


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:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for about four years as melting operator for the employer, a manufacturer of aluminum wheels. His last day of work was on June 18, 2002 (week 25), when the employer discharged him after he had repeated drug policy violations.

The issue for decision is whether the employer discharged the employee for misconduct connected with his work.

The employee was working under a last chance agreement because he had tested positive for drugs. This was signed on May 7, 2002. The employee was aware that if he tested positive for drugs, he would be discharged. On June 13, 2002, the employee tested positive for cocaine metabolites.

The employee testified that he was discharged for testing positive for cocaine and he did not dispute the test results. He has a habit, and might have a craving. He had been in treatment at least six times, sometimes for significant amounts of time. He stated his craving could flare up at anytime and he had no control over it. He said he did not ask the employer about treatment programs but he was controlling it and able to stay off drugs for a year, but he was not going anywhere. He would go out, but not to bars.

The employee asserted that he was unable to control his cocaine addiction, and as such, his use of cocaine did not amount to misconduct. On December 4, 2002, the commission sent the employee a UCB-474 Medical Report and requested that he have this form filled out by his doctor and returned to the commission by January 6, 2002(sic). The employee's form was returned to the commission on December 19, 2002. The form was not filled out by the employee's doctor, but rather by a family nurse practitioner. Further, the medical form does not indicate that the employee's relapse was beyond his control. The employee's nurse practitioner stated that the employee seemed motivated to return to work for the employer and there was no evidence of abuse during his December 17 visit. Therefore, the commission has determined that it is not necessary to remand this matter for inclusion of this report into the record.

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."

In this case, the employee had been suspended effective April 29, 2002, because he tested positive for cocaine. On May 2, 2002, the employee signed a "Last Chance Agreement" with the employer. He was placed on a 12-month probation and was aware that further violations of the employer's substance abuse policy would result in his discharge. The employee agreed to submit to random drug tests and participate in a treatment program. Despite this, the employee again used cocaine and tested positive for cocaine metabolites on June 13, 2002. The employee failed to present any expert evidence to demonstrate that he was unable to abstain from cocaine usage. His actions therefore demonstrated such a wilful and substantial disregard of the employer's interests as to constitute misconduct connected with his employment.

The commission therefore finds that in week 25 of 2002, 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 26 through 33 and 36 through 52 of 2002, amounting to a total of $7,904.00 for which he was not eligible and to which he is not entitled, within the meaning of Wis. Stat. § 108.03(1). The benefit check for week 35 of 2002 and $20 of the benefit check for week 36 of 2002 were forfeited. Since benefits are denied for such weeks they cannot be applied to the forfeiture. The amounted restored to the forfeiture balance is $243.

The next issue is whether waiver of benefit recovery is required. The commission has required a worker to demonstrate, by competent medical evidence, that he or she is unable to refrain from the use of illegal drugs. A worker's assertion that he or she is unable to control his or her drug use does not amount to competent medical evidence of such inability. See Brown County v. Gajewski, Brown County Circuit Court Decision 90-CV-1498, (March 21, 1991). Michael A. Hollowell v. Mc Glynn Bakeries UI Dec. Hearing No. 99602369MW (LIRC September 14, 1999). The ALJ's acceptance of the employee's opinion as to whether he could control his cocaine use amounted to department error, and as such, requires a waiver of the overpayment.

The commission further finds that waiver of benefit recovery is required under Wis. Stat. § 108.22 (8)(c), Stats., with regard to benefits received for weeks 26 through 34 and 37 through 52 of 2002, because the overpayment was the result of a department error, and the overpayment did not result from the fault of the employee. Repayment of $7,904.00 is waived. On September 17, 2002, the department issued an initial determination that found in week 33 of 2002, the employee concealed work performed and wages earned during the weeks ending August 17, August 24 and August 31, 2002. The initial determination noted that the claimant failed to report working for an employer because it was a temporary job. As such, a forfeiture of $243.00 was assessed. The employee did not appeal the initial determination and it became final on October 1, 2002. Therefore, the portion of the overpayment that resulted from the employee's actions in concealing work and wages were due to the employee's fault and cannot be waived.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 28 of 2002, 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. The employee is not required to repay $7,904.00 to the Unemployment Reserve Fund. The initial Benefit Computation (Form UCB-700), issued on June 24, 2002, is set aside. If benefits become payable based on other employment, a new computation will be issued as to those benefit rights. The amount restored to the forfeiture balance is $243.00.

Dated and mailed January 31, 2003
clarkri . urr : 145 : 1   MC 653.2   PC 714.10   BR 335.01 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The commission did not discuss witness credibility and demeanor with the ALJ who held the hearing, but reverses the ALJ's decision as a matter of law.

cc: Reynolds Wheels Intl. (Beloit, Wisconsin)


Note: The decision is reproduced here as affected by a technical amendment issued on February 7, 2003.

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