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


STEPHEN R JONES, Employe

ECCA CALCIUM PRODUCTS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99402489AP


On November 20, 1999, the Department of Workforce Development issued an initial determination which held that the employe had been discharged for misconduct connected with his employment. The employe filed a timely request for hearing on the adverse determination, and hearing was held on December 13, 1999 in Appleton, Wisconsin before a department administrative law judge. On December 17, 1999, the administrative law judge issued an appeal tribunal decision affirming the initial determination. The employe filed a timely petition for commission review of the adverse appeal tribunal decision, and the matter now is ready for disposition.

Based upon the applicable law and the records and other evidence in the case, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked approximately seven months as a rail car cleaner for the employer, a mining business. He took himself off of work after October 1, 1999, because he felt ill and could not stay awake and thought he might have a kind of sleeping disorder. On November 4, 1999 (week 45), the employer discharged the employe for having failed to provide documentation for his absence from work after October 23. The commission concludes that the discharge was not for misconduct for unemployment insurance purposes, and so reverses the appeal tribunal decision.

The employe stopped working after October 1, and told his supervisor he would be "on short term disability" until further notice. He provided the employer with a doctor's "off work" slip after he consulted with the doctor on October 4. The doctor diagnosed "fatigue," and authorized the employe to be off work through October 11. The employe consulted the doctor again on October 20, at which time the doctor performed blood tests and told the employe that, if the results were positive, he would treat the employe. If the results were negative, the doctor was going to instruct the employe to get a second opinion. After the October 20 examination, the doctor provided the employe a slip indicating that the date for his return to work was unknown.

On Tuesday, October 27, the employe received negative blood test results, and contacted a specialist to arrange for a sleep apnea test. He made an appointment with the specialist for November 5.

On October 28, the employer's human resources manager called the employe, and left a message that the October 20 doctor's note was insufficient to justify his continued absence. She called him on October 29, to reconfirm that message, and to tell the employe she needed complete documentation of his extended absence by November 3. The employe told her his doctor might not be available, but he wanted to return to work on November 1 in any event. The human resources manager told the employe that he could not return to work without a doctor's release.

At approximately 5:00 p.m. on October 29, the employe hand-delivered a letter to his doctor's office, informing his doctor that he would be discharged if he could not provide documentation of his time off work. He asked the doctor's secretary to call him when the documentation was available. The doctor's office did not call the employe until 4:45 p.m. on November 3. The employe immediately went to the doctor's office, and picked up the documentation. He found that the doctor had only given him an "off work" slip for the period from October 20 to October 23. The doctor instructed him to ask the specialist he was to see on November 5 for an off-work slip covering the period beginning on October 24.

The employe called the human resources department on the evening of November 3, and left a message that he had documentation from his doctor allowing him to be off work from October 20 to 23. The manager returned his call on November 4, and told him that his offered documentation was not acceptable, and that he was discharged. According to the employer's human resources manager, the reason for the discharge was a lack of documentation for the employe's extended absence, that he had had from October 20 until November 3 to get the second opinion he needed and to replace the October 20 slip stating that his return-to-work date was unknown.

Misconduct for unemployment insurance purposes is the intentional and substantial disregard by an employe of standards an employer reasonably may expect of its employes. It of course is important to employers to be able to timely receive medical excuses regarding their employes and the employes' medical problems (to the extent that those problems have an impact upon the employe's work). An examination of the timing of the events of this case indicates, however, that the employe's failure to have provided the employer a second medical slip before the discharge on November 4, was not an intentional failure by the employe.

As of October 20, the employe did not know when he would be able to return to work, because he knew there was something wrong with him but the doctor at the walk-in clinic he was going to did not yet know what it was. The doctor would only have information once the blood tests came back, which occurred on October 27. Those results were negative, and the employe was then supposed to contact a specialist for a sleep apnea test. He made the appointment for November 5, only nine days later. On Friday, October 29, the human resources manager spoke with the employe and told him he had to have complete documentation of his extended absence by November 3 (the Wednesday of the following week, and only three business days after October 29). Later on October 29, the employe hand-delivered a letter to his doctor's office, indicating that he had to provide documentation of his time off work or he would be discharged. The doctor apparently only worked at this clinic a couple of days per week. Late on November 3, the employe received notice that his documentation was ready but, when he went to get it, he discovered that it was only for October 20 - 23, that the doctor was going to require later releases to come from the specialist.

The employe in this case did everything reasonably possible in order to get the necessary medical information to the employer in a timely manner. Any failure in his doing so is attributable to his doctor and not to him; even less can his failure be considered an intentional disregard of the employer's interests. The commission therefore finds that, in week 45 of 1999, the employe was discharged from his employment with the employer, but not for misconduct connected with that employment, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is eligible for unemployment insurance, if he is otherwise qualified.

Dated and mailed February 21, 2000
jonesst.urr : 105 : 1  MC 640.08

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision in this case. The commission accepted the factual findings made by the administrative law judge, and so its reversal of the appeal tribunal decision is not based upon a differing credibility assessment from that made by the administrative law judge. It appears that the administrative law judge held against the employe his failure to have provided medical information at the hearing in this case. That was not the reason for the discharge, however; rather, the employer's own witnesses testified that the reason for the discharge was the employe's failure to have provided by November 4 medical excuses for his absences after October 23. Given the circumstances which obtained after October 23, however, for the reasons stated in the decision the commission has concluded that there was no misconduct by the employe.

Pamela I. Anderson, Commissioner (Dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. I agree with the administrative law judge and would accept her decision as my own.


_____________________________________
Pamela I. Anderson, Commissioner


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