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


RHONDA F HILL, Employe

CHICAGO LOCK CO, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98601718RC


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 the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked about 30 years as a group leader for the employer, a manufacturer of locks. Her last day of work was January 16, 1998 (week 3), when her employment was suspended. She was discharged on January 22, 1998 (week 4).

The employe reported for work on January 16 at 3:30 p.m. The employer's director of human resources and labor relations personally observed the employe and believed she was under the influence of alcohol. The employe had been drinking from the time she got off work for another employer at 1:00 p.m. to the time she reported to work for the named employer. The employe was sent to a clinic for testing pursuant to the employer's handbook The employe tested positive for alcohol. The employer's handbook provides for discharge for the first offense of "possessing, using or being under the influence of drugs and/or alcohol on Company property." The employe was discharged by letter dated January 22, 1998, for violating the aforementioned employer rule.

The employe had prior alcohol related problems with the employer. On June 10, 1997 the employe was required to sign a "letter of understanding" for continued employment. In that letter of understanding she agreed to attend alcohol treatment, follow the advice of her doctors, and attend AA meetings. The employe was seeing a number of professionals for alcohol related problems in May through August of 1997.

The employe stopped going to AA meetings but did not tell her doctor that she stopped going. The employe stopped taking Antabuse because she was working two jobs and it was inconvenient to go to the clinic to take it in front of a doctor or a nurse. She did not want to spend money for more psychiatrists or therapies or things of that sort. The employe presented no medical evidence at the hearing that she was unable to control her alcohol consumption on January 16.

The issue to be decided is whether the employe's actions, for which she was discharged, constituted misconduct connected with her work.

In Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249, 296 N.W. 636 (1941), the leading case with respect to the meaning of the term "misconduct" as applied to unemployment insurance in the United States, the court said, in part, as follows:

" . . . the intended meaning of the term 'misconduct' . . . 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. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good- faith errors in judgment or discretion are not to be deemed 'misconduct' within the meaning of the statute."

In Connecticut General Life Ins. Co. v. DILHR, 86 Wis. 2d 393 (1979), the Department of Industry, Labor, and Human Relations (DILHR) found, based on the complainant's testimony, that he had a "drinking problem."  DILHR further found that the complainant's drinking problem was a handicap, and that the employer discharged the complainant because of his handicap contrary to Wisconsin's Fair Employment Act. The Wisconsin Supreme Court first noted that the finding that the complainant had a "drinking problem" was vague and not automatically equated with "alcoholism." The court held that a diagnosis of the disease of alcoholism "is a matter of expert medical opinion proved by a physician and not by a layman." Connecticut General at 407, citing State v. Freiberg, 35 Wis.2d 480, 484, 151 N.W.2d 1 (1967). The court stated that "A conclusion that [the complainant's] handicap was alcoholism without competent evidence of a medical diagnosis to that effect would be error." Connecticut General at 408.

In Brown County v. LIRC and Marge Gajewski, Case No. 90-CV- 1490 (Wis. Cir. Ct. Brown County Mar. 15, 1991), the court found that a treatment counselor was not an expert medical witness with sufficient background to express an opinion that the employe was unable to control her consumption of alcohol. The court held that expert medical opinion was required to answer the question of whether the employe was able to control her consumption of alcohol. Following Gajewski, the commission has consistently required an expert medical opinion, usually via a UCB-474, that an employe is not able to control his or her consumption of alcohol. Trew v. Patrick Cudahy Inc., UI Hearing No. 93-606393 (LIRC Jun. 15, 1994); Seering v. Brown County Department of Community Programs, UI Hearing No. 93-402311 (LIRC May 6, 1994).

The employe has not established by competent medical evidence that she was unable to control her consumption of alcohol. The medical report (UCB-474) submitted by the employe at the hearing was signed by Patricia Mercier-Gross, a licensed psychologist. She is not therefore a medical doctor. Further, the UCB-474 indicates that Ms. Mercier-Gross last saw the employe June 11, 1997. In addition, the employe herself never claimed that she was unable to refrain from alcohol consumption. The employe agreed she consumed alcohol but claimed she was not "under the influence." The employe's actions clearly violated the employer's rule. The employe has not submitted sufficient medical evidence to establish that she was unable to control her alcohol consumption on the date in question.

The commission therefore finds that in week 4 of 1998, the employe was discharged from her employment and for misconduct connected with her work within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is modified to conform with the foregoing findings and, as modified, is affirmed. Accordingly, the employe is ineligible for benefits beginning in week 4 of 1998, and until seven weeks elapse since the end of the week of discharge and the employe has earned wages in covered employment equaling at least 14 times the weekly benefit rate which would have been paid had the discharge not occurred.

Dated and mailed: September 10, 1998
hillrh.urr : 132 : 6  MC 653.2  PC 714.10

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission originally remanded this matter to the hearing office to allow the employe the opportunity to provide a medical opinion that she was unable to control her alcohol consumption. The employe did not appear at the remand hearing and subsequently explained by facsimile transmittal that she did not receive the hearing notice because she moved. The employe had not alerted the commission of any move, which is minimally expected of all parties who move during the pendency of an unemployment insurance appeal. The commission will not order another remand hearing in this case. The employe submitted a medical report (UCB-474) from a medical doctor following the issuance of the remand order. That doctor was unwilling to certify that the employe could not control her alcohol consumption. Accordingly, further hearing would not change the outcome in this case.


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