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

MARK M KIRCHHUEBEL, Employee

LAND O LAKES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02007303JF


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 about three years as a cooler worker for the employer, a dairy products business. His last day of work was June 28, 2002 (week 26).

On or about June 28, 2002, the employee was granted a leave of absence. The employee submitted a statement from his doctor at the time, Dr. Carimi, dated June 14, 2002, indicating that the employee was in need of a six-week leave to begin within the next two weeks.

The employer contacted the employee by letter around the middle of July of 2002 indicating that he needed to fill out documentation to support a leave under the Family and Medical Leave Act. The employee contacted Dr. Carimi's office and was notified that Dr. Carimi had left the clinic and had moved to Janesville. The employee was not able to get Dr. Carimi to complete the forms. The employee called patient referral and the earliest he was able to obtain a doctor's appointment was on August 16. The employee notified the human resources director that he was not able to have the forms completed by Dr. Carimi and that the earliest he could see a doctor was August 16.

The employee did not see the doctor until August 20. At that time he was given a release to return to work on August 21, 2002. The slip indicated that his diagnosis was "confidential."

The employee presented a return to work slip to the employer but was not allowed to return because he had not submitted additional documentation establishing the need for the time off or his diagnosis. On August 29, the employer gave the employee one week to have a doctor complete medical certification forms. On September 5, 2002, the employee presented the employer with a letter from a psychiatrist, which indicated that the employee was not suffering from any mental disorder or emotional condition that would prevent him from re-initiating employment. The letter noted that the employee had been forced to deal with substantial stress with less than adequate intrinsic coping mechanisms, and that he was agreeable to continuing treatment to help him deal with stress. The employer was unwilling to allow the employee to return to work. In a letter dated September 13, 2002, the employer stated that it believed his absence was unrelated to a serious health condition and was therefore terminating his employment. (1)

The initial issue to be decided is whether the employee voluntarily terminated his employment or was discharged. If the employee quit, the issue is whether he did so for any reason permitting the immediate payment of benefits. If the employer discharged the employee, the issue is whether his discharge was for misconduct connected with his work.

The commission finds that the employer was the moving party in ending the employment relationship. The employer did not find the medical statements submitted by the employee acceptable and for that reason terminated his employment. The employee's actions in continuing to present medical documentation to the employer were not those of an individual who intended to terminate his 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 did not meet the employer's expectation that he submit medical information on its certification forms. However, the employee provided the employer with a statement from his doctor establishing that he needed time off from work for medical reasons. Thereafter, the employee presented the employer with medical documentation establishing that he was able to return to work. The employee's documentation further notified the employer the employee had been seeking treatment in order to deal with stress. The employee was reluctant to provide the employer with additional information because he wished to keep his diagnosis confidential. The employer may have been justified in discharging the employee for not meeting its expectations, but the commission concludes that the evidence did not establish that the employee engaged in conduct constituting an intentional and substantial disregard of its interests.

The commission therefore finds that in week 36 of 2002 the employee was discharged from his employment but 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 employee is eligible for benefits beginning in week 36 of 2002, if he is otherwise qualified.

Dated and mailed May 7, 2003
kirchma . urr : 132 : 1 : MC 605.09

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ James T. Flynn, Commissioner

MEMORANDUM OPINION

The commission did consult with the ALJ who presided at the hearing regarding her impressions of witness credibility and demeanor. The ALJ indicated that she did not believe the employee was in other states during his leave from work. The ALJ indicated that she believed the employee directed health care professionals not to provide the employer with a diagnosis because he did not consider that it was the employer's business. The human resources director's timeline and the discharge letter clearly indicate that the employer believed that the employee's leave was not due to a serious health condition and that the employee was traveling about the country. The commission finds that the employee was not in fact traveling in other states. The employee provided the employer with medical documentation sufficient to demonstrate that his leave was for a medical condition and treatment and that he was able to return to work.

cc: Madison Dairy


[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]


Footnotes:

(1)( Back ) The human resources director's timeline of the events leading to the employee's separation indicates that the discharge decision was initially made on August 21, 2002. 

 


uploaded 2003/05/16