Wis.LIRC UC Decision: Engels, Kathleen - June 17, 2008 - PC 717 Hearing, Continuance; PC 714.12 Evidence, Witnesses; PC 734 LIRC review, further hearing - ALJ's ruling to not allow evidence at continued hearing appropriate where petition failed to establish relevance of evidence or that it would affect the outcome and the hearing was continued solely for employee's presentation of evidence and the employer's cross- examination of that evidence; the employer could have offered evidence at original hearing but did not do so - PC 714.03 Evidence, burden of proof - employer's evidence was hearsay and was contradicted by the employee's firsthand testimony - PC 715 - Hearing, procedures, miscellaneous - ALJ's typographical error corrected by commission decision.

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

KATHLEEN L ENGELS, Employee

MERCY FAMILY PRACTICE SC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 08400267GB

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, except that it makes the following modification:

In the first sentence of the first paragraph of the appeal tribunal's FINDINGS OF FACT and CONCLUSIONS OF LAW the period of time "ten months" is deleted and the period of time "one year and ten months" is substituted therefor.

DECISION

The decision of the administrative law judge, as modified, is affirmed. Accordingly, the employee is eligible for benefits beginning in week 1 of 2008, if otherwise qualified.

Dated and mailed June 17, 2008
engelka.umd:164:1

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

Ann L. Crump, Commissioner

MEMORANDUM OPINION

In the petition for commission review the employer takes issue with the appeal tribunal's conclusion that the employee was not responsible for harm done to a patient who was not admitted to a nursing home on December 17. The employer contends that the patient was harmed because the employee repeatedly refused to perform her duties as a receptionist. The employer's argument fails. Although at the hearing the employer indicated the employee failed to let it know when the nursing home called with orders for the patient's admission, the employee testified that there was no call from the nursing home on the date in question, and the employer could offer no competent evidence to the contrary. Moreover, the employee credibly testified that she was attempting to follow the employer's instructions and would not have neglected the patient. Under all the circumstances, the commission agrees with the appeal tribunal that the evidence does not establish the employee engaged in any blameworthy conduct with regard to the incident in question.

Further, and more importantly, the resolution of this case does not turn on the question of whether the employee engaged in culpable conduct with respect to the failure to admit the resident. Rather, the question to decide is whether, having been suspended for the conduct and warned that further misdeeds would cost her her job, the employee engaged in any intervening misconduct that would have warranted her discharge. The commission agrees with the appeal tribunal that she did not. The employee was discharged based upon allegations of prior acts of misconduct the employer claimed to have learned of during her suspension. However, the employee denied having engaged in the conduct alleged, and the employer presented no competent evidence on its behalf. While in its petition the employer states that it did not present witness testimony regarding these incidents because of patient-physician confidentiality issues and because it believed the standards of evidence at an unemployment hearing were lower than for criminal or civil hearings, this argument is without merit. The employer need not present the same degree of evidence at an administrative hearing as would be needed in a criminal proceeding. However, the fact remains that the employer must have some competent evidence in support of its case. Here, the employer's evidence consisted solely of hearsay, which was contradicted by the employee's firsthand testimony to the contrary.

In its petition the employer also contends that the employee perjured herself at multiple points during her testimony. In support of this contention, it points out that the employee testified she worked on November 23, a day on which she was suspended and the clinic was closed. The employer contends that this should call into question the credibility of the rest of the employee's testimony. Again, this argument fails. The employee's testimony with regard to November 23 was that she believed she worked that day, notwithstanding the suspension, but could not be sure. When the employer pointed out that the office was closed on November 23, the employee testified that she often came in on days when the doctor was gone. The commission sees no reason to doubt the credibility of the employee's testimony in this regard, nor does her testimony on this point cause it to question the general veracity of her overall testimony.

Finally, the employer argues that the administrative law judge disallowed exhibits at the second hearing which it wanted to present as rebuttal and asks for a new hearing. While the commission does have the discretion to order the taking of additional evidence in matters before it, that authority is exercised only in a few exceptional circumstances and the commission sees no reason to do so in this matter. The continued hearing was simply to allow the employee to finish putting in her case and to afford the employer an opportunity for cross-examination. The employer had already had an opportunity to put in its evidence at that point. The documents the employer wished to submit at the continued hearing could have been presented on the first day of hearing, and the administrative law judge's decision to disallow them on that basis was appropriate. Further, although the employer has not explained the relevance of the documents that were disallowed, it does not appear that they would have affected the outcome of the case had they been considered.

Based upon its review of the record, the commission does not believe the employee was discharged due to any actions evincing misconduct connected with her employment. Accordingly, the appeal tribunal decision is affirmed.

NOTE: In its petition the employer points out that the administrative law judge found the employee worked for it for 10 months when in fact she worked a year and 10 months. The employer argues that this error shows that the administrative law judge took poor notes and therefore all of her facts and conclusions should be closely scrutinized. In fact, the administrative law judge's notes as to the dates of employment were accurate. The administrative law judge made a simple typographical error in the decision, which the commission has corrected.

cc: Attorney Thomas J. Parins, Jr.

[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]

uploaded 2008/06/20