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

MICHELLE M HALLWACHS, Employee

J L FRENCH CORP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03400071SH


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 for about 15 years as a general production worker for the employer, a manufacturer of automobile castings. Her last day of work was November 25, 2002 (week 48). She was discharged on November 27, 2002 (week 48).

The issue that must be decided is whether the employee's discharge was for misconduct connected with the employee's employment.

The employer asserted that the employee's discharge was for misconduct because the employee falsified a medical excuse. The commission agrees.

On September 13, 2000, the employee had a work-related injury. She broke bones in her foot, broke her collarbone, injured her leg and injured her back and neck. She returned to work with permanent restrictions.

The employee was absent for a sore neck on November 21 and 22. The employee saw a doctor on November 22, 2002. The doctor's office gave the employee a slip indicating that the employee was to be off work on November 21 and 22. The employee added the letters, "WR" signifying "work related" on the doctor's excuse. While the employer excused absences for medical reasons whether the medical reason was work related or not, the employer asserted that if the employee's injury was work related she would be entitled to additional benefits. The employee gave the falsified excuse to the manager of the employer's Health and Safety Department. The manager looked at the excuse and decided the letters "WR" were not in the same handwriting as the rest of the excuse. He asked two of his co-worker what they thought and they agreed. The employee was suspended.

The employer sent a letter, dated November 27, 2002, indicating that she had been discharged because she altered a medical slip to indicate that the medical condition was work related. The employer indicated that this was considered falsifying records and amounted to a major rule violation. The employer informed her that she was being discharged for falsifying her medical excuse.

The employee's actions in altering a medical excuse so that it appeared that her medical condition was work related demonstrated such a wilful and substantial disregard of the employer's interests as to constitute misconduct connected with her work.

The commission therefore finds that in week 48 of 2002, the employee was discharged for misconduct connected with her work within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits for weeks 49 through 52 of 2002 and weeks 1 through 35 of 2003, totaling $12,207.00 for which she was not eligible and to which she is not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), the employee is required to repay such sum to the Unemployment Reserve Fund.

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c), because although the overpayment did not result from the fault of the employee as provided in Wis. Stat. § 108.04(13)(f), the overpayment was not the result of a department error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 48 of 2002 and until seven weeks have elapsed since the end of the week of discharge and she has earned wages in covered employment performed after the week of discharge equaling at least 14 times her weekly benefit rate which would have been paid had the discharge not occurred. The employee is required to repay the sum of $12,207.00 to the Unemployment Reserve Fund. The initial Benefit Computation (Form UCB-700), issued on December 2, 2002, is set aside. If benefit payments become payable based on other employment, a new computation will be issued as to those benefit rights.

For purposes of computing benefit entitlement: Base period wages from work for the employer prior to the discharge shall be excluded from any computation of maximum benefit amount for this or any later claim. If the employee was also paid base period wages from work by other covered employers, the excluded wages shall be used to determine benefit eligibility. However, any benefits otherwise chargeable to a contribution employer's account shall be charged to the fund's balancing account.

Dated and mailed June 10, 2004
hallwmi . urr : 145 : 1 MC 630.09

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner



MEMORANDUM OPINION


The commission did not discuss witness credibility and demeanor with the ALJ who held the hearing. The commission reversed the ALJ's decision based on evidence adduced at the remand hearing. This evidence was not available to the ALJ when she made her decision.

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will with hold benefits due for future weeks of unemployment in order to off set over payment of U.I. and other special benefit programs that are due to this state, an other state or to the federal government.

Contact the Unemployment Insurance Division, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the over payment.

cc: Attorney George E. Chaparas


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