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

REGINA M BETTINI MAJOR, Employee

FEDERAL EXPRESS CORP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02201409EC


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, and the evidence provided at the remand hearing, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for seven years as a courier for the employer, a package delivery service. Her last day of work was April 23, 2002 (week 17). She was discharged April 30, 2002 (week 18).

On April 23, 2002, the employee was involved in two different property accidents using the employer's delivery truck. The employee did not report the first accident to the police or the employer and left the scene. The police were called to the scene of the second accident and the employee began, but did not complete, an employer accident report. The employer's policy requires prompt notification of the employer in cases of accidents. The employee was well acquainted with this rule. The employee was discharged from her employment on April 30 for failing to report an accident to the police or management.

The employee is subject to chronic and severe migraine headaches. She had been given a daily medication intended to prevent recurrence of the headaches. At her doctor's direction, on April 23, she began taking an increased dosage of a particular medication. She had an adverse reaction to the medication during the work day. As a result, she suffered memory loss as to many of the events occurring on April 23. She was hospitalized on April 24 after a serious drop in her heart rate and blood pressure.

The issue is whether the employee's discharge was 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 consistently maintained that her reason for failing to follow the employer's accident policy was related to her migraines and her reaction to the migraine medication she was taking. At the first hearing, she testified that she did not remember the second accident and had "blacked out" most of the day. She further testified that she was unaware at the time of the reaction that it was unsafe for her to drive because she was unaware of the severity of the reaction she was having. In the opinion of her neurologist, such migraines could cause confusion and poor judgment.

The commission is satisfied that the employee's medical condition and her reaction to migraine medication interfered with her ability to conform her conduct to the employer's reasonable policies concerning accidents. The employee's conduct on her last day of work was not a knowing or deliberate disregard of the employer's interests.

The commission therefore finds that in week 18 of 2002, the employee was discharged but the discharge was not for misconduct connected with her employment, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 18 of 2002, if she is otherwise qualified. This matter is remanded to the department for investigation into whether the employee is able and available for work beginning in week 18 of 2002.

Dated and mailed March 27, 2003
majorre . urr : 178 : 9   MC 662  PC 714.10 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ James T. Flynn, Commissioner

MEMORANDUM OPINION

The commission did not consult with the ALJ prior to reversing. The commission does not base its decision on a differing assessment of witness credibility. The ALJ found in his decision that the employee was having a reaction to her medication on her last day of work but did not consider that reaction excused her failure to follow the employer's policies regarding accident reporting. The commission remanded the case to supplement the record with a certified medical opinion regarding the affect that the employee's medical condition had on her conduct on her last day of work. The commission is satisfied based on that evidence and the testimony given at the first hearing, that the employee's medical condition excused her failure to follow the employer's rules. Consequently it has found that the employee's discharge was not for deliberate misconduct.

The employer argued at the remand hearing that in addition to violating its accident policy she also violated its rules by not notifying it that she was taking medication which might affect her driving. However, as the employee testified at the first hearing, she had taken a lower dose of the medication for some time with no side effects whatever, and was unaware that she risked the sort of disorientation that she suffered. Moreover, the employer was aware of her medication explanation before it fired her and did not raise this policy violation as a grounds for her discharge. The employer testified that she was discharged solely for her failure to follow its accident policy. There is no support for the employer's position that the employee committed intentional misconduct in using this medication without notifying the employer. She did not have any reason to anticipate a serious adverse reaction given her past experience with the medication.

Finally, the commission remands this case back to the department for further investigation concerning the employee's ability to work. During the remand hearing, the employee offered a letter from her neurologist which she had submitted to the Social Security Administration in support of a claim for disability benefits. Those benefits were granted in October. Since a federal agency has found that the employee's health condition has disabled her from work, she may also be ineligible for unemployment. To be eligible for unemployment benefits a claimant must be able and available to perform at least 15 percent of the suitable work in her labor market despite any health restrictions. The commission has therefore remanded this issue to the department so that it may conduct an investigation.

cc: 
Federal Express Corp. - Eau Claire, WI
Attorney Bradley D. Lawrence


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