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

JAMES G FEDRAN, Employe

MASTER DIVISION, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98606752MW

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.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employe is ineligible for benefits beginning in week 37 of 1998, and until seven weeks have elapsed since the end of the week of discharge and the employe has earned wages in covered employment performed after the week of discharge equaling at least 14 times the employe's weekly benefit rate which would have been paid had the discharge not occurred. The employe is required to repay the sum of $2,320 to the Unemployment Reserve Fund.

Dated and mailed June 2, 1999
fedraja.usd : 164 : 2  MC 605.09  PC 714.10

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The evidence adduced at the original hearing established that the employe was discharged due to excessive absenteeism. Because the employe asserted that most of his attendance violations were related to alcoholism, a matter over which he contended he had no control, the commission ordered further hearing to give the employe an opportunity to present certified medical evidence in support of his contentions. However, while the employe did present an expert opinion on that subject, he failed to present an opinion by a medical expert, as he had been asked to do, but instead presented a statement signed by an AODA counselor. Moreover, the employe's expert did not indicate that abstaining from alcohol was a matter beyond the employe's control, stating that the employe could "probably" have done so if he had access to AA meetings while under Huber release. The employe was not under Huber release during his employment with the employer and could have attended AA meetings at that time, had he chosen to do so. Under the circumstances, the evidence presented by the employe failed to establish that the employe's drinking was a matter beyond his control. Consequently, the commission agrees with the appeal tribunal that the employe's tardiness and absences were not due to valid reasons and that his poor attendance record did evince misconduct. Accordingly, the appeal tribunal decision is affirmed.

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