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

CRYSTAL D JUDON, Employee

POTAWATOMI BINGO CASINO, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 09605060MW


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, and after considering the evidence from the remand hearing, 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 modifications:

After FINDINGS OF FACT AND CONCLUSIONS OF LAW, delete the first full paragraph on page 3 and substitute therefore:

"In this case, the employer contended that the employee must have continued using drugs, because she tested at a rate of 50 ng/ml on March 16, and 105 ng/ml on April 1. The employer's medical review officer testified that this rising level of marijuana metabolites indicated continuing usage after the initial positive test. The employee maintained that she did not use marijuana again after her first test. She contended that she was not "given adequate time to cleanse myself." The medical evidence in the record refutes this contention. The employee's behavior prior to her discharge evidenced a willful and substantial disregard of the employer's interests and of the standards of conduct that the employer had a right to expect, and constituted misconduct connected with the employment."

DECISION

The decision of the administrative law judge, as modified, is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 15 of 2009, and until seven weeks have elapsed since the end of the week of discharge and the employee has earned wages in covered employment performed after the week of discharge equaling at least 14 times the employee's weekly benefit rate which would have been paid had the discharge not occurred.

Dated and mailed August 27, 2010
judoncr . umd : 178 : 1 MC 650 : MC 651.5 : MC  651.7 : PC 714.10

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

In her petition for commission review, the employee argues that she did not use marijuana again after her initial positive test. She suggests that the first specimen was a dilute specimen given after several tries and that this dilution interfered with the test and accounts for the rising metabolite levels between the two tests. She argues that she would never have placed her job in jeopardy and risked her income after the first test.

The commission had concerns about the certified drug report offered by the employer in the original hearing. It remanded for in-person testimony from a scientific expert. That expert, the medical review officer who reviewed the employee's drug test results, contradicted the statement on the certified lab report that marijuana metabolites would only be present in the employee's system for 24 to 72 hours. He gave as his opinion that due to marijuana being a fat soluble drug, those metabolites would typically be present for 2 to 4 weeks. However, he also testified that the employee's metabolite levels would have decreased in the two weeks between the drug tests as the employee metabolized the drugs in her system. The fact that they went up during that period was evidence of intervening use of marijuana. The employee cross-examined the doctor on this point and attributed the rising readings to an initial diluted specimen. The medical review officer gave as his opinion that the diluted specimen would not account for the later higher reading. The employee offered no independent medical opinion to support her contention. The commission is persuaded by this medical testimony that the employee violated the employer's drug policy and her last chance agreement. It has modified the original appeal tribunal decision to reflect the new scientific evidence from the remand hearing and to remove the disputed factual findings concerning metabolite duration.

The employee's continued employment was contingent on her abstaining from using marijuana or other illegal drugs after her initial positive drug test. Her failure to do so demonstrated a deliberate and substantial disregard of the standards of behavior that the employer had a right to expect. Therefore, the appeal tribunal decision as modified is affirmed.


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