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

JAMES A MONTGOMERY, Employee

ROMAN ELECTRIC CO INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03005797MD


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 during two time periods as an electrician for the employer, an electrical contractor. His most recent period of employment began in 1995. He was discharged on July 18, 2003 (week 29.)

The employee was discharged for conduct arising out of his anger over a series of frustrations at work. He took a heavy tool and hit the drywall of the work site where he was working. He used such force that the tool flew through the wall and landed in a corridor on the far side. The employee reported his conduct and the damage it had caused to the employer who discharged him for it.

The employee was being treated for bipolar depression during the relevant period. The psychiatrist treating the employee during the summer of 2003 indicated that "[M]r. Montgomery was experiencing significant medication problems July 2003 which in my opinion destabilized his mood and behavior, leading to anger outburst at work. Doing well now . . . no need for mood stabilizer."

The issue to be resolved is whether the employee's discharge was for misconduct connected with his work.

The commission has previously held that an employee's medical condition which interferes with his ability to conform his behavior to the employer's requirements is not guilty of misconduct. To prevail an employee must present expert medical evidence indicating that his condition caused the conduct for which he was discharged. Loomans v. Wal Mart Associates Inc, UI Hearing No. 01602370WK (LIRC Aug. 31, 2001).

In this case, the employee has demonstrated that his angry outburst was caused by his illness and associated medication problems. The employee's medication was ineffective through no fault of his own. Therefore, the commission concludes that the employee did not deliberately engage in the conduct for which he was discharged. The employer made a reasonable business decision to discharge the employee based on the facts it had at the time. However, the employee did not intentionally harm the employer's interests and that discharge was not for misconduct.

The commission therefore finds that in week 29 of 2003, 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 29 of 2003, if he is otherwise qualified.

Dated and mailed May 28, 2004
montgja . urr : 178 : 1 MC 610.08 

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The commission did not consult with the ALJ prior to reversing. The commission's decision is based upon the expert medical evidence which the employee produced at the remand hearing ordered by the commission. That evidence was unavailable to the ALJ when she made her decision.

cc: Roman Electric Co. (Milwaukee, Wisconsin)


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uploaded 2004/06/01