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

ROBERT J GELINA, Employee

MANPOWER, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07200317EC


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 about 15 months as a machine operator at a plastics injection molding business for the employer, a staffing business. His last day of work was January 30, 2007 (week 5), when he was discharged.

The issue to be decided is whether the employee's discharge was for misconduct connected with his employment.

The employer had a policy that provided that falsification of any information, written or verbal to its customers would result in discharge. The employee received a copy of the policy when he was hired. At the time of hire, he also completed a job offer medical questionnaire. The questionnaire asked "Do you have any back problems or have you sustained any back injuries?" The employee indicated that he had not. The questionnaire stated that any false information provided on the form would be grounds for termination of employment.

On December 10, 2006, the employee felt severe pain in his back when he turned to place a part in a box. While he was hospitalized, the branch manager talked to the employee about his injury. The branch manager asked him if he had ever been injured before. The employee informed her that he had fallen off a platform at a paper mill he worked at in 1985 and he hit his head and bruised his back. The employer then discharged him for providing false information on the medical questionnaire.

The employee argued that his actions did not amount to misconduct connected with his work. The commission agrees.

The employee did not answer the questionnaire correctly because the questionnaire asked whether he had back problems or injuries. The employee, in 1985, did fall at work, hitting his head and bruising his back. The employee understood the question to mean whether he had sustained any permanent back injury, for example, a herniation. The commission finds this interpretation reasonable, as such an injury that might result in work restrictions and be relevant to any positions he might be offered at the employer. Also, the first part of the question relates to a current condition that might interfere with his ability to work without restrictions. The employee did not understand the question to encompass a situation in which he sustained a temporary injury, specifically a bruise, that resolved. The employee explained that while he received medical care for that injury, that care was mainly diagnostic, and for the most part involved his head injury, as he was rendered unconscious by the fall. His medical practitioner instructed him to sit in a whirlpool tub for a few days and the employee did not miss any time from work as a result of the fall. The employee's interpretation of the question was logical. While the employee could possibly be faulted for not asking the employer exactly what it would consider a back injury, the employee's actions on the whole did not amount to an intentional falsification of the employer's records.

The commission therefore finds that in week 5 of 2007, the employee was discharged by the employer, but not for misconduct connected with his work, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 5 of 2007, if otherwise qualified.

Dated and mailed April 27, 2007
gelinro . urr : 145 : 1 MC 630.09

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The commission discussed witness credibility and demeanor with the ALJ prior to reversing her decision. The ALJ indicated that this was a close case, and that she had no particular reason, based on the manner in which the employee gave his testimony, not to believe him. She found he was not credible when he testified about his reasons for failing to note the 1985 injury because based on his description of the event, it was very traumatic and it seemed unlike something he could have forgotten. However, the commission reached a different conclusion because it considered the employee's position, that this was something he would not necessarily have considered a work injury of the sort envisioned by the question, to be logical. Further, the parties agreed that the employee was surprised to learn he had been discharged for falsification of his application. These factors led the commission to conclude that the employee did not intentionally falsify his job application.


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