LARRY L ANDERSON, Employee
R & L TRANSFER 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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.
The decision of the administrative law judge is affirmed. Accordingly, the employee is eligible for benefits, if otherwise qualified.
Dated and mailed May 7, 2003
anderla2 . usd : 178 : 9 MC 652.4 PC 714.07
/s/ David B. Falstad, Chairman
James A. Rutkowski, Commissioner
/s/ James T. Flynn, Commissioner
In its petition for commission review, the employer requested further hearing so that it might submit properly certified copies of the department's drug form. The commission remanded this case in response to this request.
At the remand hearing, the employer's new form was accepted into evidence. Individuals from the clinic and lab certified the forms. However, the signers were not the actual individuals who performed the functions certified. Medical assistant Patricia Zablowicz certified the collection procedure, although the chain of custody form indicates that M. Nevels was the individual who witnessed the collection procedure. The lab manager, Carol Trojan, certified the test results, although Rudolph Jagdharry is listed on the results as the certifying scientist. The commission will accept the certification of the lab results by a lab supervisor. However, no one with known first-hand knowledge has certified that the correct chain of custody procedure was followed. The medical assistant who certified the form is not listed in any other documents as being present at the time the sample was taken. The identity of the employee's sample is essential to establishing that it was the employee's sample which showed the positive result.
In Seabrooks v. The Geon Co. U I Dec. Hearing No. 00604875MW (LIRC Mar. 1, 2001), the commission concluded that the employer's documents lacked first-hand certification and therefore did not meet the minimum reliability standard created by the department. Therefore they could not substitute for live in-person testimony by the lab technicians who gathered the sample and who did the test."
Since the employer failed to supply a certified form with the actual clinic witness's signature, it has failed to establish with non-hearsay evidence that it was the employee's test that was positive. The employer received a second hearing for this purpose. It knew what was required from the explicit findings in the appeal tribunal decision regarding the need for direct knowledge of the certifier and the rationale for it. The commission is satisfied that the employer had an adequate opportunity to comply with these requirements. Therefore, the appeal tribunal decision is affirmed.
cc:
R & L Carriers - Milwaukee, WI
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uploaded 2003/05/16