Wis.LIRC UC Decision: Nedland, Dale - March 8, 2000 - BR 335.02 - Overpayment waiver granted - 'department error' - mistake of fact; PC 714.07 Evidence, Hearsay; PC 714.10 Evidence, Medical Evidence; MC 605.09 - Reason, General - misconduct (absences) allegedly due to depression and to migraines

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

DALE R NEDLAND, Employe

NEDLAND INDUSTRIES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99201248RL

On August 26, 1999, the Department of Workforce Development issued an initial determination which held that the employe's discharge was not for misconduct connected with his employment. The employer filed a timely request for hearing, and hearing was held on September 7, 1999 in Rice Lake, Wisconsin before a department administrative law judge. On September 17, 1999, the administrative law judge issued an appeal tribunal decision affirming the initial determination. The employer filed a timely petition for commission review of the adverse appeal tribunal decision and, by November 30, 1999 order, the commission remanded the matter for additional hearing. The matter is again before the commission, and 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 years, most recently as leadworker of a fabrication function for the employer, a refuse and recycling equipment manufacturing business. His last day of work was August 9, 1999, and he was discharged on August 10, 1999 (week 33). The employer contended that the discharge was for misconduct connected with his employment. The commission disagrees, and so reverses the appeal tribunal decision.

The leading case with respect to the meaning of the term misconduct in the unemployment insurance context, is Boynton Cab Co. v. Neubeck, 237 Wis. 249, 296 N.W. 636 (1941). In that case, the court said that misconduct for unemployment insurance purposes:

. . . is limited to conduct evincing such wilful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his employer.

In the employe's last six months of employment, he was absent on 13 occasions and late to work on 7 occasions. The employe received a warning on July 26, to the effect that he would be terminated if he were again absent without calling in and with an acceptable excuse. The absence precipitating the discharge occurred on August 10, and was without notice to the employer. It was due to the employe's having gone on a binge the previous night.

The employe has undergone treatment for drug and alcohol abuse; he testified that he suffers from depression and attention deficit disorder, as well as from migraine headaches. He testified that his absences were due to depression and to migraines. There are uncertified letters from two of the employe's physicians, finally, indicating that the employe has a history of depression and apparent attention deficit disorder. Again, though, these are not certified reports, but rather hearsay.

The competent evidence in the record is insufficient to justify the employe's unacceptably high rate of attendance failures. That is, the evidence is manifestly insufficient to establish that the employe's depression caused his absences from work. Without such a showing, however, the employe's attendance record is excessive to the point where it constitutes misconduct for unemployment insurance purposes. The commission therefore finds that, in week 33 of 1999, the employe was discharged for misconduct for unemployment insurance purposes. The commission also finds that the employe received unemployment insurance of $297 per week for each of weeks 34 of 1999 through 7 of 2000, totaling $7,722.00, for which he was ineligible and to which he was not entitled. The commission finds, finally, that waiver of recovery of $6,534 of the overpayment is required under Wis. Stat. � 108.22(8)(c), because that portion of the overpayment was the result of departmental error and not due to employe fault as provided in Wis. Stat. � 108.04(13)(f). Specifically, it was error for the administrative law judge to find that the employe's absences were justified as having been due to migraine headaches and clinical depression. There was no competent medical evidence to indicate that the employe suffered from depression (as indicated above, the evidence to that effect was hearsay), and no competent medical evidence connecting the employe's medical conditions to his absences. Absent such a connection, however, the attendance record was unjustified and without question misconduct for unemployment insurance purposes. The employe still must repay $1,188 to the Unemployment Reserve Fund, as those monies were paid prior to the issuance of the appeal tribunal decision.

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is ineligible for benefits beginning in week 33 of 1999, 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. The employe must repay $1,188 to the Unemployment Reserve Fund.

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.

Dated and mailed March 8, 2000
nedlada.urr : 105 : 1 BR 335.02 PC 714.07 PC 714.10

/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's reversal, as well as its finding of error, is based upon the insufficiency of the medical evidence before the administrative law judge, and not upon a differing credibility assessment from that made by the administrative law judge.

The dissent asserts that the employe's testimony about the medication he was taking is not hearsay and that the administrative law judge could have inferred from that evidence, coupled with the hearsay medical reports, that the employe was unable to control his attendance because of his medical conditions. Indeed, that is exactly what the administrative law judge did. Unfortunately, there is no evidence in the record to connect the employe's alleged illness with the attendance failures. The dissent's argument might be more persuasive, had the commission ever found no misconduct on a record similar to the one present in this case. The dissent can point to no such instance, however. In sum, the dissent's arguments against a finding of departmental error broadly liberalize, in the favor of claimants, the commission's positions regarding medical evidence and attendance failures.

PAMELA I. ANDERSON, COMMISSIONER (dissenting):

I am unable to agree with the result reached by the majority herein and I dissent in part. This case is complicated by the fact that the employe is a brother of the employer. Misconduct is a willful and wanton disregard of an employer's interest. Missing work especially when the employe fails to notify the employer is usually misconduct. An exception is when the employe misses work for a medical reason and is unable to contact the employer. Frequent absences for illness is not misconduct. Hearsay testimony can be used to support other evidence but findings should not be based solely on hearsay evidence.

At the first hearing the employe testified "I have depression and I'm ADD. I've been in treatment for drug and alcohol. On 8/10 I didn't go into work because I was hungover from Monday night.Most of the time I misses work due to the depression. I also get migraine headaches. I went to the doctor long before Mr. Nedland said to, to find out why I got headaches, but the doctor never made a determination. Since I haven't been at Nedland Industries I haven't had one headache." The employe also testified "I was absent due to my depression and migraines. Also Nedland Industries has people that do drugs and it was not a place for me to be in at the time.Mr. Nedland does not follow the Handbook. If it was a hot day he'd send somebody down to the bar to bring alcohol back to the shop and give it to the workers. The Handbook says that no alcohol or drugs is allowed on the premises or to be used by workers on the premises." The employe said that he had been taking an anti-depressant, Zoloff at 100.mg. for about 1 month before he was discharged.

The employe's testimony that he was taking Zoloff is not hearsay and the administrative law judge could have inferred from that along with the hearsay medical reports that the employe was unable to control his attendance because of his medical conditions. I do not believe that the employe's testimony that he was taking Zoloff would have been enough by itself to allow the administrative law judge to reach the conclusion he reached. The employer did not dispute that the employe was sick when he called in sick.

The employer also gave hearsay testimony at the first hearing as to what the employe's wife had told him when he told her that the employe was discharged. The employer testified "His wife told me that he went to seek counseling the day prior and that he ended up in a bar. He ended up drinking and getting drunk. I asked why he didn't call in. His wife said that the employe wanted her to call in for him, but she told him to call for himself. His wife said that she told him if he didn't call in he'd be terminated, per his last written warning. His wife said that he said, "well, I've been fired before."" This testimony may also influenced the administrative law judge to allow because the employer had the burden to establish misconduct and some of the employer's testimony could have added to a possible medical excuse for the employe's conduct. At the second hearing the employer testified that the employe was discharged for attendance violations not misconduct.

The commission remanded the case to allow the employe to present a UCB-474 a medical report that would be in lieu of a doctor's testimony. The report stated that the employe had depression and drug and alcohol addiction as well as family and marital problems. The report was not sufficient to excuse the employe's conduct so after the remand hearing the commission agreed to reverse the administrative law judge's decision.

It is not department error simply because the commission and the administrative law judge have different opinions as to how the case should be resolved, especially when the commission had additional testimony to consider in reaching its decision.

For these reasons, I would agree that the employe was discharged for misconduct but I dissent on the question of department error and would find no department error and that the employe should be required to repay the overpayment.

____________________________________
Pamela I. Anderson, Commissioner

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