BEFORE THE
STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

In the matter of the
unemployment benefit claim of

ANDY A MITTELSTADT, Employe

Involving the account of

BETHESDA LUTHERAN HOME, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 89-601370 WT

A Department Deputy's Initial Determination held that in week 4 of 1989, the employe was discharged for misconduct connected with his employment. As a result, benefits were denied.

The employe timely appealed the Initial Determination, and a hearing was held on March 23, 1989 before Administrative Law Judge Daniel O. Wolter, acting as an appeal tribunal of the Wisconsin Department of Industry, Labor and Human Relations. The Appeal Tribunal decision, issued on March 24, 1989, reversed the Initial Determination, and found the employe eligible for benefits.

The employer timely petitioned for review by the Wisconsin Labor and Industry Review Commission. Based on the evidence and applicable law, after consultation with the Administrative Law Judge regarding his impressions as to the credibility and demeanor of the witnesses, and having considered the arguments presented by the parties, the Commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked for about 17 months as a residential aide for the employer, a residential home for developmentally disabled individuals. His last day of work was January 25, 1989 (week 4), when he was discharged. The issue for decision is whether the employe was discharged for misconduct connected with his employment.

The employer contended that the employe physically struck a resident on January 24, 1989, causing physical injury to the resident. The resident was not called as a witness; however, three employes of the employer testified that the resident told them that the employe had struck him twice in the head with his fist. The employe denied that he struck the resident.

The testimony of the employer's witnesses as to what the resident told them was hearsay. Hearsay not subject to any exception to the hearsay rule should not be used as a sole basis for a finding, pursuant to Wisconsin Admin. Code Chapter ILHR 140.12(1). However, the Commission concludes that the hearsay was subject to the hearsay rule exception for "excited utterances" provided for in section 908.03(2), Stats. The statements were made by the resident on the morning of the incident shortly after it occurred, and on the following day. The record supports a conclusion that the resident was still in a state of excitement and stress arising from the incident at the time these statements were made. The resident, who suffered from mental retardation, had a mental age equivalent to that of a four- year old child. It has been consistently recognized that, while the passage of time between an exciting event and a statement may defeat a claim that the statement was an "excited utterance," it is appropriate to give a broad and liberal interpretation of what constitutes an excited utterance when applied to young children. State v. Padilla, 110 Wis. 2d 414, 329 N.W.2d 263 (Ct. App. 1982), citing Love v. State, 64 Wis. 2d 432, 219 N.W.2d 394 (1974), Bertrang v. State, 50 Wis. 2d 702, 184 N.W. 867 (1971), Bridges v. State, 247 Wis. 350, 19 N.W.2d 529, rehearing denied 19 N.W.2d 862 (1945). These cases recognize that the stress of an exciting event can be present in children even some time after the triggering event. The rationale for this application of the excited utterance rule in the case of children has been explained by the court as being derived from three considerations. First, a child may be apt to repress traumatic incidents, and only describe them later. Second, it is often unlikely that a child will report a highly stressful incident to strangers as readily as an adult will, thus potentially explaining delays in reporting of the incident. Third, the characteristics of young children work to produce declaration free from conscious fabrication for a longer period after the incident than with adults, in that it is unlikely that a young child will review the incident and calculate the effect of the statement. State v. Padilla, 110 Wis. 2d at 419. Given the mental age of the resident here, it is appropriate to invoke the liberal application of the "excited utterances" exception to the hearsay rule.

The employe argues that the "excited utterance" exception cannot be applied here because there is no independent evidence (i.e., apart from the utterances themselves) that any exciting event in fact occurred. While there is some authority for the proposition that there must be independent evidence that an exciting event in fact occurred, see Commonwealth v. Barnes, (1983) 310 Pa. Super. 480, 456 A. 2d 1037, 38 ALR 4th 1227, and 29 Am. Jur. 2d sec. 711, there is also authority to the contrary. In McCormick's Evidence, 2d Ed. 1977, sec. 297, it is reported that the general view is that the excited statement alone is adequate to prove that an exciting event in fact occurred, and Texas is noted as one of the few jurisdictions holding otherwise. While Pennsylvania may have joined Texas in this rule, there still seems to be a split in authority.

While Wisconsin has not addressed this precise point, the Wisconsin Supreme Court did hold in State v. Lenarchik, 74 Wis. 2d 425 (1976), that the fact that a declarant was a witness to an exciting event could be inferred solely from his "excited utterance" about it. Based on Lenarchik, the Commission considers it likely that Wisconsin courts would hold that an "excited utterance" may be considered as establishing the fact of the exciting event.

In any case, the Commission believes that there was independent evidence of the presence of an exciting event here. The independent evidence is the testimony of the employer's witnesses as to the physical appearance of the resident's head and face on the morning in question. Zubke, the employer's director of residential services, observed the resident on the day in question and saw that the left side of his head near his ear was quite swollen and bruised; she further observed that he had not shaved that morning, thus discounting subsequent suggestions that any abrasions seen on his cheek might have resulted from careless shaving, Zubke also observed the resident on the following morning and noted bruises on his right cheek. Ebert, the employer's social worker, observed dried blood in the left ear of the resident, on the morning in question, as well as bruises on the left side of his face which she described as a redness or rawness not like that from finger scratches, but as from an abrasion. Redfield, the employer's vocational specialist, observed the resident on the morning of the incident and noted that "he was hurt on one side of his face." While the employe argues that this testimony was not competent, and that expert medical evidence should have been offered to prove that the resident had in fact been injured by a blow or blows to the head, the Commission disagrees. While the witnesses in question were mot medical professionals, they worked in closely allied fields, they were professionally responsible for making observations of the type they made, their observations were reasonably precise and specific, and they suggest at very least that the resident sustained some type of traumatic injury to his head that morning. The Commission does not believe that it is necessary that it be independently established by the evidence that the resident was struck by someone, since the point is merely whether there is enough evidence of the existence of an "exciting event" that the "exciting utterance" can be considered. Obviously, something happened to the resident that morning which injured him. While still feeling the effects of that injury, and while still experiencing the excitement and the stress resulting from the injury, the resident made certain statements concerning the cause of the injury. These statements were admissible as "excited utterances."

The Commission thus considers that the statements of the resident to the employer's witnesses can be considered as evidence. Those statements were made close to the time of the event, they were clear, credible, and internally consistent, they were consistent with the physical injuries the resident was observed to have sustained, and they clearly identified the employe as the assailant. The resident had no history of fabricating claims of abuse. The Commission finds that this evidence constitutes convincing proof that the employe intentionally struck the resident twice on the head with his fist. Such actions are indisputably misconduct. The Commission rejects the employe's denial that he committed the assault as being less convincing than the consistent and credible statements of the resident.

The Commission therefore finds that in week 4 of 1989, the employe was discharged for misconduct connected with his employment, within the meaning of section 108.04(5) of the Statutes. The Commission further finds that the employe was paid benefits in the amount of $155 per week for each of weeks 36 through 40 of 1989 amounting to a total of $775, for which he was not eligible and to which he was not entitled, within the meaning of section 108.03(1) of the Statutes, and pursuant to section 108.22(8)(a) of the Statutes, he is required to repay such sum to the Unemployment Reserve Fund.

DECISION

The decision of the Appeal Tribunal is reversed. Accordingly, the employe is ineligible for benefits beginning in week 4 of 1989, and until seven weeks have elapsed since the end of the week of discharge and he has earned wages in covered employment performed after the week of discharge equaling at least 14 times his weekly benefit rate which would have been paid had the discharge not occurred. 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 employe 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. The employe is required to pay the sum of $775 to the Unemployment Compensation Reserve Fund.

Dated and mailed October 23, 1989
110 : CD0536  MC 687

/s/ Kevin C. Potter, Chairman

/s/ Carl W. Thompson, Commissioner

/s/ Pamela I. Anderson, Commissioner

NOTE: In his consultation with the Commission, the administrative law judge indicated that he found the employe to be a credible witness at hearing. However, it was clear that the administrative law judge's conclusion, that the hearsay testimony offered by the employer's witnesses was inadmissible and therefore could not form the sole basis for a finding, was the major factor in his decision that the employer had failed to prove misconduct. The Commission has reversed in this case because of its legal conclusion that the hearsay in question was subject to the "excited utterance" exception to the hearsay rule and was therefore available to the trier of fact. The Commission considered the statements of the resident, as reflected by the testimony of the employer's witnesses, to be credible and consistent, and it therefore arrived at a different result than the administrative law judge.

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