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

THOMAS E TABASKA, Employee

JOHN DEERE SHARED SERVICES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06600803MW


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 ineligible for benefits beginning in week 52 of 2005, 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. The employee is required to repay the sum of $8,854.00 to the Unemployment Reserve Fund. The initial Benefit Computation (Form UCB-700), issued on January 4, 2006, is set aside. If benefit payments become payable based on other employment, a new computation will be issued as to those benefit rights.

Dated and mailed January 26, 2007
tabasth . usd : 164 : 1   MC 652.9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

In his petition for commission review the employee attempts to supplement the record with documents that were not submitted at the hearing. Because by law the commission is required to base its review solely upon the evidence that was presented at the hearing before the appeal tribunal, it will neither consider nor address that evidence which the employee could have presented at the hearing, but has instead presented for the first time with his petition for review. While the employee suggests that he was prejudiced by the fact that his expert submitted a written report on the first day of hearing, which the employer's expert then had an opportunity to consider prior to the continued hearing, this is not a circumstance that would warrant reopening the record at this juncture. The documentary evidence at issue was available to the employee and his witness prior to the hearing and, in the event they believed it would strengthen the employee's case, it should have been presented at the hearing. The employee's request to submit additional evidence is denied. The commission will base its review upon that evidence which was presented during the two separate days of hearing already held before the administrative law judge.

The evidence adduced at the hearing failed to establish that the hair test results submitted by the employee were reliable. There are no federally accepted standards for hair testing methodology, and the procedures used to test the employee's hair sample have not been approved by the FDA. The employee's own expert testified that he does not know of a certification process for the collection of hair samples for testing and that there is not an agreed upon cut-off for any drug and its metabolites in hair. Further, although the employer's expert explained that the length of the hair sampled is relevant to the test and that hair dyes and color treatments will affect the outcome of the hair test, there is nothing to indicate the length of the hair sampled, nor was any information collected with regard to possible chemical alteration of the hair sample. While in his petition the employee attempts to dismiss Dr. Ritter's opinions on these points as unsupported, at the hearing his testimony went unrebutted.

In contrast to the substantial questions regarding the reliability of the hair test results, the evidence failed to establish any reason to doubt the results of the urinalysis performed by the employer. The employee's own expert did not question the reliability of the urinalysis, except to posit that the high concentration of cocaine metabolites, over 100,000 ml., would have resulted in noticeably impaired behavior in the workplace. However, given that both experts subsequently agreed that no correlation has been found between impairment and metabolite concentration, there is simply no basis to conclude that the high concentration of metabolites identified calls into question the accuracy of the test results.

In his petition the employee also reiterates the contention made at the hearing that, because no split sample was collected, it was not possible to test for false positives. However, the employee's own expert testified that the result of a drug test done by a certified lab on a urine sample collected by an approved or certified collector is generally reliable and presumptively correct and that the likelihood of a certified lab producing a false positive is substantially less than 1%. The employer's expert testified that in his ten years as an MRO, during which he has reviewed several thousand drug tests, he has never seen a false positive, and described the odds of a false positive as close to impossible. Thus, the evidence simply does not support a conclusion that failure to obtain a split sample calls the test results into question.

The commission has considered the remaining arguments raised by the employee in his petition, but finds them similarly unpersuasive. The commission agrees with the administrative law judge that the positive drug test was reliable and with his conclusion that the employee's actions in testing positive for cocaine while on a last-chance agreement specifically providing for discharge under these circumstances constituted misconduct.

Finally, the commission notes the employee's argument that, if benefits are denied, then it should be found that either the employer did not provide timely information during the investigation or the department committed an error requiring waiver of the overpayment. The employee has not elaborated on this argument, and the commission sees no basis to conclude that such errors were committed. Accordingly, the appeal tribunal decision is affirmed.

cc:
Linda S. Nedelcoff
Attorney Eric E. Hobbs



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