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


PETER F BLESER, Employe

ECM MOTOR ACQUISITION COMPANY INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 97004811JV


On September 24, 1997, the Department of Workforce Development (department) issued an initial determination finding that the employe was discharged for misconduct within the meaning of Wis. Stat. § 108.04(5). The employe was ineligible for benefits. A hearing was held on November 3, 1997 before an administrative law judge (ALJ). On November 5, 1997 the ALJ issued his appeal tribunal decision, reversing the initial determination, finding that the employe was discharged but not for misconduct connected with his employment in week 42 of 1996. The employe was eligible for benefits as a result of this decision.

The employer timely petitioned the commission for review of the appeal tribunal decision. On March 26, 1998, the commission ordered that testimony be taken before an administrative law judge, acting on behalf of the commission, with respect to the department's UCB-474 medical form. A remand hearing was held on April 20, 1998 at which time the employe presented a completed UCB-474 medical form and attached letter by the employe's treating doctor, Jack Spear, Ph.D.

Based on the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked approximately seven and one-half years on the employer's varnish line. The employer manufacturers electric motors. The employe's last day of work was October 18, 1996 (week 42) when the employer discharged the employe for striking his supervisor.

The employe is 39 years told and developmentally disabled from birth. The employe has considerable difficulty in expressing himself clearly, as found by the ALJ based on his impressions taken from the hearing. According to the employe and his father who also testified on behalf of the employe, the employe tends to get frustrated when he cannot do things he sees other people doing and has the potential to act violently. The employe earned a high school equivalency diploma but the employe's father believes his son thinks at a fifth or six grade level. The employe was hired by the employer through the Private Industry Counsel (PIC) and was then recognized by the employer as a special employment case.

On January 10, 1996 the employe received a final warning for threatening behavior exhibited toward a co-worker.

On October 18, 1996 the employe's supervisor approached the employe inquiring what he was doing. The employe struck his supervisor twice, once on his shoulder and once in the abdomen. The employe's supervisor recognized that the employe was not like other workers and that the employe could occasionally become agitated and difficult to understand. The supervisor believed nothing had transpired that would have caused the employe to strike him. The ALJ however found that some of the employer's records of the incident indicate there was some talking and arguing betweem the two before the assault. The employe was discharged for striking his supervisor.

The issue, therefore, is whether the employe's discharge was for misconduct connected with his employment within the meaning of Wis. Stat. § 108.04(5). 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 insurance 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' within the meaning of the statute."

The ALJ found that the employe's discharge was not for misconduct connected with his employment. The ALJ acknowledged that ordinarily striking a supervisor whether with a fist or with an open hand is evidence of misconduct. However, the ALJ believed that the employe's actions were the result of his inability or incapacity to control his behavior. Consequently, the ALJ believed that due to these extenuating circumstances, the employe lacked the intent to strike his supervisor and accordingly found a discharge but not for misconduct connected with the employe's employment.

This finding of fact and conclusion of law however were not supported by any medical evidence submitted into the record at the hearing. Consequently, the commission ordered a remand hearing allowing the employe an opportunity to have his treating doctor(s) prepare a department UCB-474 medical form.

At the remand hearing the UCB-474 was admitted into evidence. The UCB-474 listed the employe's diagnosis as "Organic Personality Disorder and Psychotic Disorder, NOS". The form was prepared by Dr. Jack Spear, Ph.D. in association with Dr. Barbara Murray, M.D. Dr. Spear did not offer an opinion as to whether the employe was unable to perform his activities as required by the employer. Dr. Spear noted that he was unable to state or render such an opinion since he had only known the employe since November 19, 1997.

In a letter attached to the UCB-474, Dr. Spear noted that the employe has been in treatment since November 19, 1997. The doctor explained that the employe has a life long condition which is diagnostically difficult to determine but includes "organic brain dysfunction and Borderline Intellectual Function". The employe is also presumed to have "Psychotic Disorder, NOS" and is being treated with antipsychotic medications with positive effect. Dr. Spear opined that the employe's condition is manifested, in part by poor insight, marginal thinking skills, marginal judgment skills, and poor ability to anticipate consequences. The doctor noted that the employe's interpersonal skills are poor as well as interpersonal problem solving skills. Dr. Spear noted the employe is capable of learning tasks that are visibly based including some technical skills but that he does not adapt to change readily. The employe has difficulty comprehending subtle social behaviors and easily misperceives their intent and tends to cope with interpersonal stress by isolating himself. The doctor finally opined that the employe is capable of performing work tasks that are routine but requires a high degree of supervisory support and assistance.

Dr. Spear however did not opine whether the employe lacked the requisite intent to deliberately disregard the employer's interests or standard of conduct expected of him when he struck his supervisor. After reviewing the medical evidence, the commission concludes that it is insufficient to support a finding that the employe lacked the capability to form the requisite intent when he struck his supervisor. Even though Dr. Spear opined that the employe possesses marginal thinking skills and judgment skills and a poor ability to anticipate consequences, the employe worked for approximately seven years with the employer without incident. Furthermore, the employe received a final warning in January of 1996 for a somewhat similar incident. Therefore, because the medical evidence is insufficient to support the ALJ's finding and conclusion of law, the commission reverses his appeal tribunal decision.

The commission therefore finds that in week 42 of 1996, the employe was discharged for misconduct connected with his employment within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employe was paid benefits amounting to $2,661.00 for which he is not eligible and to which he is not entitled, within the meaning of Wis. Stat. § 108.13(1). Pursuant to Wis. Stat. § 108.22(8)(a), the employe 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 employe 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 appeal tribunal decision is reversed. Accordingly, the employe is ineligible for benefits beginning in week 42 of 1996, and until seven weeks have elapsed since the end of the week of discharge and the employe has earned wages in covered employment performed after the week of discharge equaling at least 14 times his weekly benefit rate which would have been paid had the discharge not occurred. The employe is required to repay the sum of $2,661.00 to the Unemployment Reserve Fund.

Dated and mailed: May 15, 1998
blesepe.urr : 135 : 1 MC 640.05 MC 670  PC 714.10

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did not confer with the ALJ regarding his credibility impressions of those who testified. The commission reverses the appeal tribunal decision based on the insufficiency of the medical evidence submitted by the employe. The commission does not believe that the medical evidence submitted by the employe supports a conclusion that he lacked the requisite intent to deliberately disregard the employer's interests and standard of conduct expected of him. Accordingly, the appeal tribunal decision is reversed.

cc: ECM MOTOR ACQUISITION CO

FRANK BLESER


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