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

RENARDO N COLEMAN, Employee

CAPITAL RETURNS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 11600276MW


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 worked for three years as a regulatory auditor for a reverse pharmaceutical company. The employee was discharged on November 16, 2010 (week 47).

The employer has a drug testing policy which provides for both random and reasonable cause drug testing. It forbids possession, use, or sale of illegal or unauthorized drugs while on or off duty and provides for discharge for a positive test. The employer subjected the employee to a random drug test on November 8, 2010. The employee provided an oral split test sample, a form of saliva testing, for the employer. The sample tested positive for marijuana. The employee was discharged on November 16, 2010, for violation of the employer's drug testing policy.

The employee disputed the results and denied using any illegal drugs. When the employer notified him of the results he requested retesting but understood that the retest would be done at the same lab as the original test. He objected to this and the employer did not clearly communicate to him that he could choose his own lab to test the split sample. The employee then sought out a urine and a hair test to attempt to refute the original result. The employer did not rescind its decision to discharge the employee.

The employer provided certified departmental drug testing forms to establish the positive result. It also provided the testimony of its Medical Review Officer (MRO) who reviewed the employee's drug test results to testify on the reliability of the oral split screen test for establishing illegal drug use. He testified that it was his opinion that it was the equivalent of urine testing in terms of reliability.

The issue to be decided is whether the employee's discharge was for misconduct connected with his employment.

For purposes of establishing misconduct in unemployment insurance cases, the commission has limited suitable methods of drug testing to urinalysis. This was most recently reiterated in Brandt v. Scot Forge Co., U I Hearing No. 09006150JV (LIRC July 30, 2010). The employer offers an alternative method of drug testing and asks the commission to conclude from this test that the employee used illegal drugs contrary to its drug testing policy.

The commission must first determine whether the record establishes that this evidence is a sufficiently reliable basis for a finding of misconduct.

The MRO who evaluated the test for the employer testified regarding the reliability of oral split screen testing. He stated that he performs medical consulting and MRO services as the owner of his own business. In that role, he checks the chain of custody and determines whether an employee has a plausible medical explanation for a result. He did not testify regarding his credentials and background with regard to drug testing methods or what journals or treatises he relied upon in forming his opinion. He gave as his conclusory opinion that the oral split screen test is as reliable as urinalysis for establishing illegal drug use.

The Wisconsin statutes provide in relevant part:

907.02 Testimony by experts. (1) If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if the testimony is based upon sufficient facts or data, the testimony is the product of reliable principles and methods, and the witness has applied the principles and methods reliably to the facts of the case. [emphasis added]

The above statute reflects amendments to Wis. Stat. § 907.02 which took effect on Feb. 1. It requires that testimony be based on facts and reliable principles and that the witness have experience applying those principles. The expert in this case does not offer any basis for his conclusion that the oral split screen test result is as reliable as urine.

Since the MRO offered no underlying scientific basis for his opinion, the commission concludes that it does not satisfy the statutory requirements for expert testimony. The employee denied illegal drug use. The commission concludes that the record in this case does not establish that this test result is a sufficiently reliable basis on which to find illegal drug use.

The commission therefore finds that in week 47 of 2010, the employee was discharged and not for misconduct connected with his employment, 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 47 of 2010 if otherwise qualified.

Dated and mailed October 28, 2011
colemre . urr : 178 : 1

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

MEMORANDUM OPINION

The commission did not discuss witness credibility with the ALJ before deciding to reverse. It does not base its reversal on any differing assessment of witness credibility but as a matter of law.

 

cc: Capital Returns, Inc. (Pittsburgh, PA)
Genco Supply Chain Solutions Pharmaceutical Services
Attorney Thomas Hayes


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


uploaded 2012/01/03