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


SANDRA E GORSKE, Employe

COLOR ARTS INC, Employer

UNEMPLOYMENT COMPENSATION DECISION
Hearing No. 97601715RC



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 the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked about 18 years as a press operator for the employer, a screen printer. Her last day of work was January 23, 1997 (week 4), when she was discharged.

On April 5, 1995 the employe was working with another worker, John Joslin. The employe was helping give a boost to a high lift which had inadequate nitrogen to allow it to lift automatically. The employe did not indicate she had been injured. About two weeks after the incident the employe told Mr. Joslin that she had been injured and gave him a medical excuse. She was off beginning in mid-April of 1995 until the second week of June 1995, collecting worker's compensation benefits.

On April 13, 1995, the employe sought treatment from a chiropractor, Dr. Daniels. The employe complained of back pain, pain in the posterior thigh and buttock, and tingling in the right hip and leg from a work injury. The employe indicated that she had immediate pain following the injury which had gradually worsened in part due to the amount of bending she was doing at work. She reported that she did not have any physical complaints prior to the injury. She was diagnosed at that time with lumbar strain/sprain, muscle spasm, and subluxation of the thoracic and lumbar spine. An x-ray of the thoracic and lumbar spine taken on April 13, 1995 found no gross pathological osseous, joint, or soft tissue abnormality. She was placed on light duty performing no constant lifting, bending, or sitting. The employe was treated by Dr. Daniels on April 14, 15, 17, 18, 19, 20, 21, 22, 24, 25, 26, and 27. Dr. Daniels took the employe off work completely beginning April 17.

The employe was seen by Dr. Noonan on May 1, 1995, on referral from Dr. Daniels. The employe was complaining mostly of lower back pain but also pain into the right buttock and her posterior thigh. She also complained of numbness in the whole right leg. Dr. Noonan diagnosed a lumbar strain. Dr. Noonan recommended back book, Relafen, therapy and strengthening and stabilization exercises. The employe was scheduled to return in ten days at which point Dr. Noonan indicated hopefully she would be able to work in a sedentary position. An MRI was not recommended at that point unless she continued to have significant problems.

On May 11, 1995, the employe was again seen by Dr. Noonan. Dr. Noonan's treatment note states:

"Sandra returns and is not doing well at all. She has been to therapy a couple of times. She says she has a significant amount of pain in her back. She is very upset about all of this because she is getting married in five weeks and she wants to be better. She can't walk for more than 15 minutes without having to lay down. She c/o pain from her superior gluteal region up to her lower thoracic spine. She also c/o a burning and tingling feeling here. She is getting some pain into her right posterior thigh."

Dr. Noonan assessed persistent and worsening lower back pain and placed the employe in a no-work status.

On May 15, 1995 an investigator employed by the employer's worker's compensation carrier videotaped the employe working in her garden. For approximately three hours the employe was gardening in her front and side yard, planting, digging, removing and carrying sod, bending and crawling. The employe's activities also included lifting a 2 by 2 foot flower pot from the porch to the ground, planting plants in the pots, and lifting the pots back to the porch. The video tape did not show the employe resting between activities. The employe worked at a steady pace and was not wearing a TENS unit. The employe did not show any signs of discomfort.

The employe was next seen by Dr. Noonan on May 22, 1995, at which time Dr. Noonan stated:

"Sandra returns and is still having a lot of problems. It's all pain in her back, with some occasional leg pain. She comes in with a rehab nurse, Ann Koenig, R.N., today.

She says she is miserable and can't do anything. She is not able to sleep at night. She says she wants to go back to work but can't. Her wedding is four weeks away and she is very nervous about all the problems she is having prior to her wedding."

In a May 22, 1995 note Dr. Noonan indicated that the employe had several surgeries that she did not tell him about the first time including carpal tunnel release and a laparoscopy. She was next seen by Dr. Noonan on June 1, 1995. The medical note of that date reflects:

"Sandy returns and is still having problems. She has difficulty doing much of anything, she says. She said she was able to lie out in the sun and sit on the porch in the sun for awhile yesterday. That helped a certain amount, as she was able to be inactive.

At that time, Dr. Noonan indicated that the employe could return to light duty/sedentary work with no bending, twisting, or lifting. In return to work notes dated May 1 and May 11, Exhibits 6 and 7, Dr. Noonan indicated a diagnosis of lumbar strain/sprain and that she could not work until further notice. On June 8, 1995, Dr. Noonan released the employe to perform sedentary work for a period of two weeks, four hours a day, with restrictions against squatting, crawling, crouching, kneeling, and twisting. She could occasionally bend, stoop, climb, push/pull, and reach above shoulder height.

Dr. Noonan was then shown the videotape of the employe's May 15, 1995, gardening activities. On June 12, 1995, Dr. Noonan released the employe to return to full duties without any restrictions. The employe was able to perform all her duties after she returned to work. Dr. Noonan completed a medical report on September 7, 1995, indicating the employe has no permanent disability, her healing period had ended, she was discharged from care, and her prognosis was good.

In January of 1997, the employer's worker's compensation carrier decided that the employe's actions constituted fraud. The District Attorney's Office investigated and decided to bring charges. The employe was charged with insurance fraud in January of 1997. The matter was also reported in the newspaper on January 23, 1997. The employer considered the seriousness and extent of the employe's dishonesty and decided that continuing her employment would send the wrong signal to its workers. The employer discharged the employe for misrepresenting her condition to her doctor, leading her doctor to believe that her injuries prevented her from working and thereby receiving worker's compensation benefits. She was also discharged for engaging in activity contrary to her doctor's orders, and for failing to report for work that she was able to perform.

The issue to be decided is whether the employe was discharged for misconduct connected with her work.

In Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249, 296 N.W. 636 (1941), the leading case with respect to the meaning of the term "misconduct" as applied to unemployment compensation in the United States, the court said, in part, as follows:

" . . . the intended meaning of the term 'misconduct' . . . is limited to conduct evincing such wilful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good- faith errors in judgment or discretion are not to be deemed 'misconduct' within the meaning of the statute."

The employe maintained that she engaged in the video taped activities on May 15, 1995, because she was feeling better and because she wanted to get out of the house. The commission does not find the employe's explanation for her May 15 activities to be credible. Just four days earlier she had told Dr. Noonan that she was in a significant amount of pain and could not even walk for more than 15 minutes without having to lay down. The employe acknowledged that those activities were not in keeping with her doctor's recommendation and that her doctor did not give her permission to engage in such activities. In fact, the employe testified her doctor advised her to avoid such activities, not to overdo things and to take it easy. The employe admittedly was not following her doctor's advice on that day.

The employe maintained she took rest breaks on May 15. However, the hour-long video tape did not show the employe taking rests nor the employe in any discomfort. Indeed, the employe went through a rather impressive range of physical activities. The employe testified that an hour to an hour and one-half later her back started hurting. After reviewing the video tape the commission does not doubt that the employe's back began hurting. Indeed, the commission believes that an individual with no back problems would feel sore after engaging in the amount and type of physical activity reflected in the video tape.

Based on the employe's May 15, 1995, physical activities the commission concludes that the employe misrepresented her physical condition to her doctor, in particular, on May 11. In addition, when the employe next saw her doctor on May 22, she obviously made no mention of her activities a week earlier. She reported to the doctor that she "is miserable and can't do anything." She thus misrepresented her level of physical activity to her doctor.

The employe was not in the painful condition she related to her doctor. In addition, although she was restricted from working and engaging in physical activity based on her representations of her physical condition, she then engaged in physical activity contrary to her doctor's recommendations. The employe's actions risked prolonging her absence from work based on any legitimate physical problems associated with her work injury. Further, by misrepresenting her condition to Dr. Noonan the employe prevented Dr. Noonan from assessing her true ability to return to work for the employer. Based on Dr. Noonan's decision to release the employe to work with no restrictions after viewing the May 15 video, the commission can only conclude that Dr. Noonan would have released her to return to work earlier than he did if he would have been aware of her true physical condition. Instead, the employe received worker's compensation benefits for an extended period of time despite the employe's ability to perform her work.

The commission finds that the employe's actions, for which she was discharged, evinced an intentional and substantial disregard of the employer's interest and of standards of behavior the employer had a right to expect of the employe rising to the level of misconduct connected with her work.

The commission therefore finds that in week 4 of 1997 the employe was discharged for misconduct connected with her work, within the meaning of Wis. Stat. § 108.04 (5).

The commission further finds that the employe was paid benefits in the amount of $562.00 for weeks 5, 7, and 8 of 1997, for which she was not eligible and to which she was not entitled, within the meaning of Wis. Stat. § 108.03 (1).

The final issue to be decided is whether recovery of overpaid benefits must be waived.

Wisconsin Statute § 108.22 (8)(c), provides that the department shall waive the recovery of overpaid benefits if the overpayment was the result of departmental error, and the overpayment did not result from the fault of the employe. Under Wis. Stat. § 108.02 (10e)(a) and (b), department error is defined as an error made by the department in computing or paying benefits which results from a mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, or from misinformation provided to a claimant by the department, on which the claimant relied.

The overpayment in this case results from the commission's reversal of the appeal tribunal decision. Such reversal was not due to department error as defined in Wis. Stat. § 108.02 (10e)(a) and (b). Rather, the commission has reached a different legal conclusion when applying the law to the facts.

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22 (8)(c), because although the overpayment did not result from the fault of the employe as provided in Wis. Stat. § 108.04 (13)(f), the overpayment was not the result of a department error. See Wis. Stat. § 108.22 (8)(c)2.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is ineligible for benefits beginning in week 4 of 1997, and until seven weeks elapse since the end of the week of discharge and the employe earns wages in covered employment equaling at least 14 times the weekly benefit rate which would have been paid had the discharge not occurred. She is required to repay the sum of $562.00 to the Unemployment Reserve Fund.

For purposes of computing benefit entitlement: Base period wages from work for the employer prior to the discharge shall be excluded from any computation of maximum benefit amount for this or any later claim. If the employe was also paid base period wages from work by other covered employers, the excluded wages shall be used to determine benefit eligibility. However, any benefits otherwise chargeable to a contribution employer's account shall be charged to the fund's balancing account.

Dated and mailed December 5, 1997
gorsksa.urr : 132 : 1 MC 630

/s/ Pamela I. Anderson, Chairman

/s/ David B. Falstad, Commissioner

MEMORANDUM OPINION

The commission did consult with the ALJ regarding his impressions of witness credibility. The ALJ concluded that the employe merely made a mistake in engaging in gardening activities on May 15. However, the commission disagrees that the employe's activities can be viewed as a simple mistake given her statements to her doctor before and after May 15 in which she both represented that she was in extreme pain and that she was unable to engage in even short-term physical activity. Perhaps lifting a flower pot on and off a porch could be viewed as an isolated instance of poor judgment, however, the employe's activities as depicted in the video tape covered a wide range of physical movements and continued over an extended period of time.

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will withhold benefits due for future weeks of unemployment in order to offset overpayment of U.C. and other special benefit programs that are due to this state, another state or to the federal government.

Contact the Unemployment Compensation Division, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the overpayment.

cc:
ATTORNEY CHARLES STEVENS
LINDNER & MARSACK


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