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


STEVE M AWES, Employe

OAKWOOD LUTHERAN HOMES ASSOCIATION INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99001481MD


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 13 of 1999, 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.

Dated and mailed July 20, 1999
awesst.usd : 132 : 3 MC 610.25

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The employe has petitioned for commission review of the adverse appeal tribunal decision which found that the employe was discharged from his employment for misconduct connected with his work. The employe argues in his petition that he did not act out of anger and did not use excessive force in the incident in question. However, as noted by the administrative law judge, the employe's statements to the employer, in both verbal and written form, indicate that the employe "lost it." Further, what is critical here is that the employe intentionally used force in an attempt to remove the call light from the resident. It is not necessary that the evidence show that the employe intended injury. See McGraw-Edison Co. v. ILHR Dept., 65 Wis. 2d 703 (1974). The commission cannot agree with the employe's assertion in his petition that his decision to forcefully remove a call light from an 88- year-old resident who was clutching to the same constituted an "exercise of sound clinical judgment." For these reasons, and for the reasons set forth in the appeal tribunal decision, the commission affirms that decision.

cc: Attorney George Strother
Krekeler & Scheffer SC


awes.doc

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