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

TED R ZAREMBA, Employee

WISCONSIN VETERANS HOME, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03401346AP


On April 3, 2003, the Department of Workforce Development issued an initial determination which held that the employee's discharge was for misconduct connected with his employment. The employee filed a timely request for hearing on the adverse initial determination, and hearing was held by telephone on July 2, 2003 before a department administrative law judge. On July 7, 2003, the administrative law judge issued an appeal tribunal decision modifying and affirming the initial determination. The employee filed a timely petition for commission review of the adverse decision, and the matter now is ready for disposition.

Based upon the applicable law and the records and other evidence in the case, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee most recently worked approximately three years as a laundry worker for the employer, a state veteran's home facility. The employer discharged him on March 10, 2003 (week 11), for failure to adequately document four absences over the previous several months, and the issue is whether these failures by the employee constitute misconduct for unemployment insurance purposes. The commission concludes that they do not, and so reverses the appeal tribunal decision.

The employer placed the employee in what it calls its sick leave abuse category on August 5, 2002, following an instance of alleged sick leave abuse on July 25, 2002. The employer alleged that the employee was not ill on that day, but rather simply wanted to take the day off because friends were visiting. The employee conceded that, on July 24, he had jokingly stated he would take sick leave the next day when his friends were visiting. The employee then alleged he in fact was ill the next day; when the employer subsequently learned of the employee's July 24 statements, it determined to place the employee in the above-mentioned category. Individuals in this category must provide complete documentation of absences allegedly due to illness, including: 1. That the employee was examined or treated by a physician on the day of illness; 2. Statement of the nature of the health care problem and why that problem prevented the employee from working; and 3. Actual signature only by a physician or physician's assistant (no stamped signatures).

The employee was absent from work on September 4 and 9, and provided medical excuses therefor. The excuses did not state the nature of the illnesses or injuries causing the absences, however, and one of the excuses was not signed by a physician or a physician's assistant. The excuses themselves were not in evidence, so it is unknown whether the unsigned excuse had no signature whatsoever or only a signature stamp.

The employee was absent due to the flu on December 27, 2002. He went to his clinic, but it was closed. He did not go to the emergency room, because he did not believe it was appropriate to do so for the flu. The record does not indicate that it was medically necessary for the employee to have been seen by a physician that day, and it is unreasonable to expect the employee to take up the time or resources of a hospital emergency room for the sole purpose of meeting an employer's documentary demand for such an absence.

The employer next disciplined the employee for failure to provide proper documentation of a January 30, 2003 absence. The employee had reported to work at 4:00 a.m. for mandatory overtime and then left work, purportedly to go to a doctor's appointment. There was mix-up with some of the employee's medical records, however, resulting in the cancellation of the appointment. Specifically, the employee had been scheduled for a cortisone injection, but the clinic which was to perform the injection had not yet received the MRI results it would need in order to properly administer the injection. The employer disciplined the employee because he did not provide documentation that he had been examined or treated on the day of illness (January 30).

The incident precipitating the discharge was the employee's insufficient excuse for an absence on February 28, 2003. The employee left work early, asserting severe back pain and that he wanted to be examined by his doctor. He returned to work the next day with a note signed by his physician. The employer deemed this note insufficient because it did not state the nature of the illness causing the employee to have to miss work. The employer subsequently discharged the employee for the insubordination of failing to follow the directives in the August 5 letter regarding the specificity of information to be supplied for absences due to illness or injury. At the disciplinary meeting following this failure in documentation, the employee indicated that he had been advised by his lawyer he did not have to fully meet the conditions set forth in the August 5 letter and that his lawyer had specifically told him not to release certain medical information to the employer.

Misconduct for unemployment insurance purposes is the intentional and substantial disregard by an employee of standards an employer reasonably may expect of its employees. The employer's requirements of the employee, however, were not entirely reasonable. First, it is unclear that an employer may dictate to a medical facility that facility personnel may not use signature stamps on medical slips. Second, not all illnesses require a visit to a medical clinic. Third, even if a patient does go to a clinic, the patient will not necessarily always be seen by a physician. Given the above factors, no blame is attributable to the employee for his failure to provide the required documentation for his December 27 absence. Nor should the employee's failure to have provided documentation for his January 30 absence have been held against him. The record does not indicate that the employee was in any way at fault for his failure to have been seen by a physician on that date. Indeed, the record indicates that the employer knew of the circumstances surrounding the mix-up in the transfer of the medical records, but disciplined the employee regardless. The commission in no way wishes to suggest that the employee was blameless in this matter; it remains the case, though, that the fault attributable to him falls below the line necessary to constitute misconduct for unemployment insurance purposes.

The commission therefore finds that, in week 11 of 2003, the employee was discharged but not for misconduct connected with his work, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The appeal tribunal decision is reversed. Accordingly, the employee is eligible for unemployment insurance beginning in week 11 of 2003 if he is otherwise qualified.

Dated and mailed December 11, 2003
zaremte . urr : 105 : 1  MC 605.09   MC 605.093

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision in this case. The commission's reversal is not based upon a differing credibility assessment from that made by the administrative law judge. Rather, the commission concludes that, as a matter of law, insufficient fault is attributable to the employee for documentation failures, to justify a finding of misconduct.

cc: Attorney Mary E. Kennelly


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