CAROL A BURT, Employee

PROFESSIONAL HEALTH CARE SERVICES INC, Employer

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.

The decision of the administrative law judge is affirmed. Accordingly, the employee is eligible for benefits in weeks 46 through 48 of 2006, if otherwise qualified.

Dated and mailed March 19, 2007
burtcar . usd : 132 : 2   MC 676   PC 729

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

The employer has petitioned for commission review of the adverse appeal tribunal decision that found the employer suspended the employee's employment but not for good cause connected with her work for the employer. The employee was suspended after the employer received a complaint from the VA. The VA did not want the employee back on its premises. The ultimate allegation was that the employee was attempting to obtain pain medication from a patient. The employee was suspended while the employer investigated the allegation.

The ALJ found that the employee was suspended pending investigation and therefore her suspension was not for good cause. This is consistent with the commission's past decisions. The commission has previously held that a suspension that is not disciplinary in nature, but only for purposes of investigation, is not for "good cause" within the meaning of Wis. Stat. § 108.04(6). See Brown v. Jewel Food Store (LIRC October 20, 1998); Hadley v. Vision House (LIRC November 19, 1998); Simmons v. Jewel Food Store (LIRC March 27, 2002); Stahl v. Doskocil Food Service (LIRC March 29, 2002); Widlake v. Crown Corp. & Seal USA Inc. (LIRC November 30, 2004); and Tober v. Reinhart Retail Group No. 1 Inc. (LIRC July 16, 2004). The employer's testimony and the employer's attorney's comments indicate the employee was suspended pending conclusion of an investigation. Syn. 3 and 4.

In the petition, the employer indicates that the Handbook for Employers states that a disciplinary suspension includes "a suspension pending investigation of actions by the employee that may be considered patient abuse." The employer is referring to the 2005 version of the Handbook for Employers. The 2006 version does not give the examples that were set forth in the 2005 version. Further, the commission is not bound by the department's interpretation of the law.

The employer also believes that the ALJ was hostile. The commission acknowledges based on many years of reviewing hearings by the ALJ who presided at this hearing that the ALJ may come across as abrupt and has a tendency to interrupt a witness's testimony. However, the commission cannot conclude that the ALJ was hostile toward the employer or that his actions or statements reflected bias.

Finally, the employer sought subpoenas in this case to present testimony from the police officer who completed a report and the patient. However, given that the employee was suspended pending investigation, whether the employer could have proven the underlying allegations made against the employee, presumably with the testimony of the police officer and the patient, was not at issue.

cc: Attorney Michael A. I. Whitcomb

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