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

KRISTINA L MORQUECHO, Employee

KWIK TRIP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 11606610MW


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 nine years as a retail clerk for a retail business. Her last day of work was June 9, 2011 (week 24), when she was discharged.

The employer has a written drug policy which provides for random drug testing and provides for discharge following a positive drug test result. This policy was known to the employee. On June 2, 2011, the employee was selected for a random drug test. That test was positive for amphetamines. The employee denied that she had taken any amphetamines. The employer discharged the employee for testing positive contrary to its policy.

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

The record contains properly certified departmental drug forms signed by appropriate parties as evidence of the positive drug test result. The collection report is certified by the individual who collected the sample. The Drug Test Report is certified by the Associate Director of Forensic Toxicology. The commission has accepted supervisory certification since Seabrooks v. The Geon Co., U I Dec. Hearing No. 00604875MW (LIRC Mar. 1, 2001). Both documents attest that the DOT mandated chain of custody procedures were maintained. The commission concludes that the employee tested positive for drugs contrary to a known employer policy.

The commission therefore finds that in week 24 of 2011, the employee was discharged from her employment and for misconduct connected with her work within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits in the total amount of $8,874.00 for weeks 25 through 27 and 36 through 53 of 2011, and weeks 1 through 8 of 2012, for which the employee was not eligible and to which the employee 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. Wis. Stat. § 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 employee. Under Wis. Stat. § 108.02(10e)(a) and (b), departmental 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, by commission or omission, or from misinformation provided to a claimant by the department, on which the claimant relied.

The commission finds that the employee was paid benefits due to departmental error. The ALJ accepted the employee's argument that the employer's drug testing forms were incomplete and therefore the result was unreliable. Specifically, the ALJ questioned a perceived inconsistency between the certified departmental documents and incomplete internal documents which were not certified but were appended to the reports. The ALJ's focus on the supporting documents instead of the certified departmental forms is in error.

Wis. Stat. § 108.09(4m) provides that "[t]he contents of verified or certified reports by qualified experts presented by a party or the department constitute prima facie evidence as to the matter contained in the reports in any proceeding under this section, insofar as the reports are otherwise competent and relevant, subject to such rules and limitations as the department prescribes." The internal chain of custody form does not supersede a properly certified drug form which attests to the chain of custody.

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


DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 24 of 2011, and until seven weeks have elapsed since the end of the week of discharge and the employee has earned wages in covered employment equaling at least 14 times the weekly benefit rate which would have been paid had the discharge not occurred. The employee is not required to repay the sum of $8,874.00 to the Unemployment Reserve Fund. The employer's account will be credited with the overpaid amount. The initial Benefits Computation Form (Form UCB-700), issued on June 12, 2011, is set aside. If benefit payments become payable based on other employment, a new computation will be issued as to those benefit rights.

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 employee 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 February 29, 2012

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 and demeanor with the ALJ who presided at the hearing. The commission has reversed the ALJ's decision for reasons set forth above.

At the hearing the employee also argued that her sample was identified as dilute and therefore the result was unreliable. This argument fails. As the commission stated in Lake v. N & M Transfer Co Inc, U I Hearing No. 07402477AP (LIRC Mar. 20, 2008), "[n]either the ALJ nor the commission has the expertise to evaluate whether the dilution made the result unreliable." The lab certified a positive result and the commission accepts this as accurate.


morqukr . urr : 178 : 9

cc: Kwik Trip - Kenosha, WI

 


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