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

MICHAEL A HOLLOWELL, Employe

MC GLYNN BAKERIES, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99602369MW

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 unemployment insurance from week 4 through week 11 of 1999 and until he has earned wages in covered employment performed after the week of discharge equaling at least $4,158.00. The employe is required to repay $3,220.00, of which $68.00 was included in a notice of overpayment, UCB-37, to the Unemployment Reserve Fund.

Dated and mailed September 14, 1999
hollomi.usd:145:1 PC 714.10

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The employe contended that his attendance did not amount to misconduct connected with his employment because he was unable to control his drinking, and was unable to work as a result of his back pain. On July 30, 1999, the commission remanded this matter to allow the opportunity to present medical evidence to support his assertions about his medical condition. The employe was unable to have a medical expert complete a copy of the department’s certified medical form relating to his inability to control his alcohol use or his back problems, and as such, he failed to demonstrate that his discharge was not for misconduct. The determination as to whether the employe was unable to control his drinking must be made by a medical expert. (See Brown County v. Gajewski, Brown County Circuit Court Decision 90-CV-1498, March 21, 1991). The employe presented no medical evidence to demonstrate that he was unable to work as a result of a back problem.

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