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

JEANNE M PEHOSKI, Employee

FORTIS INSURANCE CO, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04602245MW


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, except that it makes the following modifications:

1. In the third sentence of the second paragraph of the ALJ's FINDINGS OF FACT and CONCLUSIONS OF LAW delete "On October 12, 2003, she received a written warning" and insert therefor "On October 22, 2003, she received a verbal warning."

2. In the fifth sentence of the second paragraph of the ALJ's FINDINGS OF FACT and CONCLUSIONS OF LAW delete "second written warning" and insert therefor "verbal warning."

3. Add as the third paragraph of the ALJ's FINDINGS OF FACT and CONCLUSIONS OF LAW the following:

The employee's supervisor was not aware the employee had any psychological condition that might affect her behavior. The employee did not advise her supervisor that she believed her conduct was related to her bipolar disorder.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 6 of 2004, and until seven weeks have elapsed since the end of the week of discharge and the employee has earned wages in covered employment performed after the week of discharge equaling at least 14 times the employee's weekly benefit rate which would have been paid had the discharge not occurred.

Dated and mailed December 22, 2004
pehoaje . usd : 132 : 1   PC 714.10  MC 669

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The employee has petitioned for commission review of the adverse appeal tribunal decision that found the employee was discharged for misconduct connected with her work for the employer. The employee was discharged for ongoing combative, inappropriate, and unprofessional communication with co-workers and supervisors.

The employee submitted a medical report on which her psychiatrist indicated she had been treating since 1995 for bipolar disorder II. The psychiatrist indicated that the effects of her condition included low stress tolerance, mood and sleep disruption. The employee was taking Lithium/Wellbutrin. The employee's psychiatrist was asked whether the employee's medication, or lack of medication, rendered her unable to appreciate her conduct and language when interacting with superiors and coworkers and her psychiatrist responded:

Medication would not cause inappropriate behavior and she has been compliant with the medication. When the patient feels closed in or excessively stressed, she may misperceive the tone or intent, and then retaliates verbally and impulsively. Feels remorseful and confused afterwards.

The psychiatrist added:

More regular, comprehensive counseling or therapy could be helpful in helping patient better deal with work stress and complex job situations.

Expert medical opinion is necessary to support a finding as to whether a given action is caused by an individual's psychological disorder. See Lochner v. LIRC and Saint Gobain Performance Plastics Corp., No.02 CV 2814 (Wis. Cir. Ct. Dane County April 2, 2003); Lindberger v. LIRC, No. 00-CV-1798 (Wis. Cir. Ct. Dane County March 29, 2001). The fact that the employee has a condition that may cause her to act inappropriately in certain situations does not establish that every time she does act inappropriately it is because of that condition. The employee must establish that her conduct on the dates in question was caused by, or likely to have been caused by, her bipolar disorder. The statements of the employee's psychiatrist do not establish that her conduct on the dates at issue was caused by her bipolar disorder.

The commission does not consider the employee's actions to constitute isolated incidents merely because she did not repeat exactly the conduct that led to a warning. Rather, the employee's actions constituted a pattern of inappropriate, discourteous and insubordinate conduct.

For the above reasons, and for the reasons set forth in the appeal tribunal decision, the commission affirms that decision.

cc:
Attorney Doris E. Brosnan
Attorney Jason A. Kunschke


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