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

WILLIAM R BEAVER, Employee

WEL COMPANIES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 09004223MD


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 first worked for the employer as a driver beginning in 1993 through 1997, when he was discharged. He was rehired in October 2002 and was discharged again on May 18, 2009 (week 21).

The employee was a driver for the employer, a transportation concern. He was subject to the employer's drug and alcohol policies as well as federal law concerning drugs and alcohol. He submitted to a random drug test on May 14, 2009 in Pennsylvania. The laboratory tests were conducted in Louisiana and the test results were positive for marijuana metabolites.

The employee knew that a positive drug test would result in discharge. The employer's policies and federal law require that the employee refrain from performing driving duties after a positive test.

The employee questioned the accuracy of the drug test results. In particular, that the report submitted to the department contained certification of its contents by the sample collector and the MRO assistant, but not an individual from the laboratory where the sample was tested.

The issue to be decided is whether the employee was discharged for misconduct connected with the employment. A worker who is discharged is entitled to benefits unless discharged for misconduct connected with the employment.

In CJW, Inc. v. LIRC and Goodwin, Case No. 04-CV-1704 (Wis. Cir. Ct. Racine Co., February 22, 2005), an Unemployment Insurance Certified Drug Report was found to be inadequate when signed by medical review officer (MRO) who did not have personal knowledge of the drug test and its result. In that case, the MRO completed the department's form and relied on a computer generated lab report "certified" without signature by someone at the lab which was insufficient to meet the requirements of Wis. Stat. § 108.09(4). The form constitutes a certified report of an expert witness to the extent that it contains competent and relevant material.

In the instant case, the test result provided by the employer is not properly certified by a representative of the lab in Louisiana. The unemployment insurance drug form submitted by the employer is rejected because it was not completed by someone with first hand knowledge of the lab who could certify to the accuracy of the results. The report in this case was completed by the MRO coordinator who had no first hand knowledge of the events in question. Since the party completing the report is not competent to certify that the lab in Louisiana followed procedures in maintaining custody and testing the sample, she is not competent to certify the form. The employer or its agent needed to follow the clearly articulated instructions on the cover letter which alerted the employer that the form must be certified by someone who can personally attest to the accuracy. This was not done. Without a properly certified Expert Report in the record, there is no non-hearsay evidence provided that the employee tested positive for marijuana. The employer has failed to meet its burden of establishing that the employee's discharge was for misconduct.

The commission therefore finds that in week 21 of 2009 the employee was discharged from his employment but that the discharge was 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 21 of 2009, if otherwise qualified.

Dated and mailed January 29, 2010
beavewi . urr : 178 : 5 MC 652.4

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The commission did not discuss credibility with the ALJ prior to deciding to reverse. The commission reverses as a matter of law due to the insufficiency of the evidence.


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uploaded 2010/02/10