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

BILL M DRIESSEN, Employee

V & S MIDWEST CARRIERS CORP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06401602AP


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:

Delete the sixth and seventh paragraphs under the administrative law judge's FINDINGS OF FACT and CONCLUSIONS OF LAW.

DECISION

The decision of the administrative law judge, as modified, is affirmed. Accordingly, the employee is eligible for benefits beginning in week 23 of 2006, if otherwise qualified.

Dated and mailed September 29, 2006
driesbi . umd : 132 : 2   MC 652.4

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The employer asserts in its petition that the MRO does not certify the test results. The commission agrees. In this case the drug forms submitted by the employer do not contain the signature of the individual who performed the testing. Ms. Santkuyl, whose title is safety director, certified the form that covers obtaining and sealing the specimen. Ms. Santkuyl also certified the form that covers performing the test analysis. The file does not reflect that Ms. Santkuyl actually performed the test nor does the record contain the credentials of Ms. Santkuyl as a lab analyst. In Seabrooks v. Geon Co., UI Dec. Hearing No. 00604875MW (LIRC March 1, 2001) the ALJ rejected the drug test results the employer sought to submit because the medical review officer who signed the drug forms lacked firsthand knowledge of the circumstances surrounding the gathering and testing of the employee's sample. The commission affirmed the ALJ's decision stating:

In a similar case, Shada v. Hondo Inc, UI Dec. Hearing No. 99602009RC (LIRC June 11, 1999), the commission found that while the employer presented evidence of a positive drug test result, it failed to establish that the test result was valid. In that case, the record contained a signed certification by the laboratory taking the specimen, but no signed certification from the laboratory performing the drug testing analysis. Consequently, the commission held it was not established that the proper chain of custody procedures were followed. This case likewise contains no certification or credentials from the lab analyst who performed the test which is expressly required by the department's form. The department reasonably requires a party to demonstrate that the individual actually running the test is qualified and therefore that the result can be relied upon. As noted above, no information from the lab is included in the employer's materials other than the Federal Register's certification of the lab facility. Moreover, the Medical Review Officer cannot attest to those facts about which she has neither supervisory nor first hand experience. The commission therefore concludes that the employer's documents do not meet the minimum reliability standard created by the department which is necessary for them to substitute for live in-person testimony by the lab technicians who gathered the sample and did the test.

Whether the drug test met DOT requirements, the testing form in this case was not properly certified and the form could not substitute for the live testimony of the individual who performed the testing.



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