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

CHRISTOPHER C JOHNSON, Employee

CLOPAY BLDG PRODUCTS CO INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05202463NR


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 one and one-half years as a shipping worker for the employer, a garage door manufacturing business. His last day of work was October 6, 2005 (week 41), when he was discharged.

The issue to be decided is whether the employee's actions, which led to his discharge, constituted misconduct connected with his work for the employer.

On September 1, 2005, the employee received a verbal warning for failing to timely report a work injury to his leg. On September 29, 2005, the employee received a written warning for failing to timely report a work injury to his back. The employee was notified that his failure to immediately report any work injury would result in corrective action up to and including termination.

On October 5, 2005 (week 41), the employee reported to the employer that he had injured his back while going downstairs to the employer's smoke shack where he was to take a work break. Those stairs at the time were slippery because of rain. This report was made at about 10:00 a.m. The employee went home because of this injury. At 11:45 a.m., he called the employer to report that the injury had not occurred while going down the stairs to the smoke shack but rather had occurred earlier in the morning while he had performed glass cleaning duty. He was discharged on the following day for falsification of the reason for his absence and concealing his failure to make an immediate report of the injury at the time that it had occurred. The employee explained that he wished to avoid recurrence of discipline for this reason but had been unable to find a supervisor immediately after his injury to make a report of that injury.

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' with in the meaning of the statute."

The commission rejects the employee's claim that he could not find a supervisor. The employer's testimony established that there were a number of supervisors on duty to whom the employee could have reported his injury in person or by radio. The employee instead left work without notifying anyone that he had been injured. The employee's actions came within a week of receiving a warning for failing to promptly report a work injury. A reasonable person in the employee's circumstances would understand that an intentional failure to timely report a work injury was conduct that demonstrated a willful interference with the employer's interests. The employee's actions demonstrated an intentional and substantial disregard of the employer's interests.

The commission therefore finds that in week 41 of 2005 the employee was discharged from his employment and for misconduct connected with his work within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits in the amount of $5,134.00 for weeks 48 through 53 of 2005, and weeks 1 through 13 of 2006, for which the employee was not eligible and to which the employee was not entitled, within the meaning of Wis. Stat. § 108.03(1).

The final issue to be decided is whether recovery of overpaid benefits must be waived. Wis. Stat. § 108.22(8)(c), provides that the department shall waive the recovery of overpaid benefits if the overpayment was the result of departmental error, and the overpayment did not result from the fault of the employee. Under Wis. Stat. § 108.02(10e)(a) and (b), departmental error is defined as an error made by the department in computing or paying benefits which results from a mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, by commission or omission, or from misinformation provided to a claimant by the department, on which the claimant relied.

The overpayment in this case results from the commission's reversal of the appeal tribunal decision. Such reversal was not due to departmental error as defined in Wis. Stat. § 108.02(10e)(a) and (b).

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 departmental 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 41 of 2005, and until seven weeks elapse since the end of the week of discharge and the employee has earned wages in covered employment equaling at least 14 times the weekly benefit rate which would have been paid had the discharge not occurred. The employee is required to repay the sum of $5,134.00 to the Unemployment Reserve Fund. The initial benefit computation (UCB-700) issued on November 23, 2005, is set aside. If benefits become payable based on work performed in other covered 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 April 13, 2006
johnsch . urr : 132 : 8 :  MC 630.07

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The commission did consult with the ALJ who presided at the hearing regarding his impressions of witness credibility and demeanor. The ALJ did not relate any demeanor impressions he had of the witnesses that led to his 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: Clopay Bldg Products Co.
 


Appealed to Circuit Court.   Affirmed February 21, 2007.    [Circuit Court decision summary]

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uploaded 2006/04/17