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

TERRANCE E COLEMAN, Employee

CARGILL MEAT SOLUTIONS CORP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07601010MW


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 eligible for benefits beginning in week 1 of 2007, if otherwise qualified.

Dated and mailed July 23, 2007
colemte2 . usd : 150 : 1   MC 630.20  PC 715

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM DECISION

The employer petitioned the appeal tribunal decision, arguing that the hearing record established that the employee's discharge was for misconduct connected with his employment. It argued that the employee intentionally falsified a health history questionnaire and that the questions were not vague, subject to misinterpretation or overly broad. In reaching the commission decision, the record has carefully been reviewed, including the digital record.

At the hearing, the employer was represented by a human resources associate (HR associate), who was the only witness on behalf the employer. The HR associate was not involved in the discharge decision, was not present at the discharge, did not have any firsthand dealings with the employee as it related to the pre-employment health questionnaire and was not the custodian of the documents offered by the employer related to the questionnaire. The HR associate offered the discharge paperwork reflecting that the employee was discharged for "falsification." She asserted that the "falsification" was based upon the employee's dishonesty in completing a "pre-employment" health questionnaire; specifically that his answers to questions 26 - 27 were falsified. Those questions were as follows with the following answers marked:

26. Have you had trouble with your back or neck? No. 

27. Have you worn a back brace or support within the past year? Yes. 

28. Have you ever had any chronic back problems or back surgery? No. 

Additionally, although not argued at the hearing, the employee also answered, "yes" to the question 42, "Have you ever been in a hospital?"

On the reverse side of the questionnaire, the employer's then nurse allegedly made notations regarding her discussions with the employee regarding his health and any "yes" answers.

While petitioner argued that the questionnaire was not vague, the commission disagrees. Particularly, questions 26, 28 and 42 offer no assistance as to the detail required i.e. what is the definition of "trouble" or "chronic," also while technically question 42 might also be answered "yes" merely by visiting a hospital, more questionable is whether any time limit exists. Without the nurse available to testify, the employer failed to present any competent evidence that clarification regarding these questions was provided to the employee or to what extent the employee disclosed any health issues. Again, the nurse who allegedly made the notations to the questionnaire and the corresponding computer medical record did not appear as a witness; it is unclear whether the notations were complete or whether any information offered by the employee was omitted. Moreover, without the current custodian of the computer medical record, the employer's current nurse, there is no evidence as to the accuracy or completeness of the record.

To further support the falsification claim, the HR associate offered another computer record alleged completed by the employer's current nurse who met with the employee on January 4, 2007.  (1)   Similarly, while these records were marked as exhibits, the custodian was not present and the notations regarding the conversation between the nurse and the employee were hearsay.

Based upon the nature of the employer's evidence, the ALJ asked limited questions of the employee. The dissent argues that the ALJ failed to meet her burden to develop the record. The majority disagrees and argues that, it was within the ALJ's discretion not to act as an advocate on behalf the employer given its evidentiary showing. Had the employee not appeared, the employer would have failed to meet its burden of proving misconduct. Additionally, even though the employee admitted the bus injury, the record did not establish he failed to tell the "pre-employment" nurse about that hospitalization or that it was a "chronic" enough condition to warrant answering questions 26 or 28 "yes." The employer's representative had the opportunity to question the employee to develop the record further in terms of the alleged falsification but did not.

For these reasons, the appeal tribunal decision is affirmed.

 

JAMES T. FLYNN, CHAIRMAN (dissenting)

I respectfully dissent from the majority opinion. The ALJ failed to adequately develop the record in this matter. Her failure to specifically question the employee about his discussions with the "pre-employment" nurse or the extent of his bus injury was, in effect, turning a blind eye to the reasonably available competent evidence necessary to resolve the falsification issue. (2)   I disagree with the majority opinion that, had she asked such questions, she would have been prosecuting the employer's case for it. I would remand the matter for additional testimony.

/s/ James T. Flynn, Chairman

 

cc: Cargill Meat Solutions Corp. (Butler, Wisconsin)



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Footnotes:

(1)( Back ) The employee was taken to the nurse on the 4th by his supervisor after the employee complained that, prior to work that day, he injured his back at home. The nurse directed the employee to seek medical attention. The employee did so and returned to work the next day with documentation from his physician. At that time, the employee was discharged for the alleged falsification.

(2)( Back ) This is a criterion critical to a fair hearing as set forth by the U.S. Department of Labor in its oversight responsibilities to ensure the quality of the State's unemployment insurance appellate process. See criterion #23, ET Handbook 382, Second Edition, June 1996, U.S. Department of Labor, Employment and Training Administration.

 


uploaded 2007/07/24