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

GENE L RICHARDSON, Employee

CORNWELL PERSONNEL ASSOCIATES LTD, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04605556MW


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.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is eligible for benefits beginning in week 16 of 2004, if otherwise qualified.

Dated and mailed March 17, 2005
richage . usd : 150 : 1  MC 652.4  PC 715

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The employer petitioned the appeal tribunal decision arguing that the employee's failure to contact it after April 1, 2004 constituted a voluntary termination of employment. The commission disagrees. In particular, as of April 1, 2004, both the employer and employee considered the employee to be on a medical leave of absence. During this time the employer's insurance company was investigating whether the employee's treatment would be covered. The employer did not impose any notice requirement on the employee during the pendency of his medical situation. When the employer received notice on April 12 that the employee allegedly failed his drug test, it removed him from its active placement records. The commission agrees with the administrative law judge that this employer action constituted a discharge.

Alternatively, the petitioner argued that it presented sufficient evidence in the form of an Unemployment Insurance (UI) Drug Report to establish that the employee's discharge was for misconduct. The commission disagrees. Specifically, the Unemployment Insurance (UI) Drug Report marked and received as Exhibit 4 is flawed. The employee's sample was taken at St. Joseph's in Wauwatosa yet the "Obtaining and Sealing the Specimen" section of the UI Drug Report was signed and attested as accurate by a doctor, who stamped his location the "Work Injury Care Center" in Milwaukee. The same doctor signed and attested to the accuracy of the "Performing the Test Analysis" portion of the drug test form. Further, while the doctor wrote "see forms per DOT protocol," no such forms were attached. The laboratory's and analyst's credentials were also not attached as required by the report. Adding to this confusion, Exhibit 3 reflects another named individual and her signature as the individual who actually took the sample. Exhibit 3 also contains a separate drug analysis page listing a third name, with no signature, as certifying the accuracy of the analysis conducted in Marshfield. In CJW, Inc. v. LIRC and Goodwin, Case No. 04-CV-1704 (Wis. Cir. Ct. Racine Co., February 22, 2005), a UI Drug Report was found to be inadequate when signed by medical review officer (MRO) who did not have personal knowledge of the drug test and its result; the MRO's reliance on a computer generated lab report "certified" without signature by someone at the lab was insufficient to meet the requirements of Wis. Stat. § 108.09(4).

With respect to the UI Drug Report, the petitioner also contended that the ALJ improperly denied its request to offer the doctor as a telephone witness to address the concerns with the report. Yet, the hearing was scheduled in person, in Milwaukee and the employer offered no explanation for not bringing the witness in person or for failing to make arrangements for a telephone witness prior to the hearing. More importantly, there is no reason to believe the doctor would have been able to address the concerns with the drug report as he apparently lacked firsthand knowledge of both the taking of the sample and its analysis.

Finally, the petitioner objected to the administrative judge's behavior at the hearing. It argued that the administrative law judge was disrespectful to both parties, interrupting and talking over each witness. At the petitioner's request, the digital record of the hearing has been reviewed. In an effort to place the evidence in logical order, the commission notes that the administrative law judge interrupted and rephrased questions. While this may have been completed in a less abrupt manner, the parties were afforded due process with an opportunity to present the evidence each had available. Under these circumstances, the commission will not remand the matter for a new hearing or additional testimony.

For these reasons, as well as those mentioned by the administrative law judge, the appeal tribunal decision is affirmed.


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uploaded 2005/03/25