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


TIMOTHY R JACOBS, Employe

PHOENIX HEALTH CARE PRODUCTS LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99605389MW


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 makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked eight years and about four months for the employer, a manufacturer of heavy industrial lighting equipment and a paper converting company. His last job was as a printing press operator until his last day of work on July 12, 1999 (week 29). The employer discharged the employe on July 12 for misrepresenting his physical condition to the employer and to his physician.

The employe was absent from work for a claimed work injury to his back starting on June 17, 1999 (week 25), and ending July 9, 1999 (week 28). He was under the care of a physician and received physical therapy for lower back pain. The employe was attending medical appointments and therapy while off work. He attended the appointments on June 21, June 23, June 30 and July 7. The June 21, and June 23 notes indicate employe had back spasms. He was prescribed Vicadin and Flexeril. The employe complained of pain with motion and trouble sitting or standing for long periods. On June 30 he indicated that the pain was significantly decreased, he still limited his movement, but ambulation was improved. On July 7 he again reported decreased pain. The employe's physician did not release him for work until July 12, 1999 (week 29). He was not released for light duty during the absence from work between June 17 and July 9.

The employer arranged for undercover surveillance of the employe while he was off work. On June 24, 25, 26, 27, 1999, and July 3, 1999, the employe was videotaped in various activities, such as biking, walking, driving and playing with children. The employer considered that he was well enough to perform light-duty work for he was able to engage in the activities recorded on the videotape.

On June 24, 1999 the employe limped to his therapy appointment in the morning and limped after therapy. Later that afternoon he was riding bike and lifting his kids onto the bike. On June 25 he again appears very sore in the morning and later in the afternoon when getting out of his truck. He does not do much that day but walk around. On June 26 in the afternoon he went to a water park with his two children from 2:00 p.m. until 4:00 p.m. During that time he is in the pool spinning the children around in the water and lifting an inflatable raft with a child on it and tossing it in the air. The morning of June 27 he is seen moving around fixing a car walking very slowly and very gingerly. He again is walking very gingerly around 11:30 a.m. He is seen walking around about 2:00 p.m. holding his back. On July 3 in the late afternoon at one point he jogs about ten feet but otherwise looks to be holding back.

The issue to be decided is whether the employe was discharged for misconduct connected with his 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 compensation 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."

The employer has not shown that the employe misrepresented his condition to the employer or to his doctor. It was not the employe's decision whether he should be released to light-duty work. The doctor examined the employe and knew that light- duty work was available, but took him off work completely. The employe did not violate any restrictions that were in place on his physical activities. The employe's doctor did not limit the employe to bed rest. In the videotape the employe clearly showed signs that he was experiencing back pain. Further, the employe's presentation to the clinic was not of constant debilitating pain that prevented him from moving about. Indeed, with nearly each appointment the employe reported improvement. Finally, on examination the employe was found to be experiencing back spasms. This is objective evidence that the employe had a back injury.

The commission therefore finds that in week 29 of 1999 the employe was discharged from his employment but not for misconduct connected with his work 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 benefits beginning in week 29 of 1999, if he is otherwise qualified. There is no overpayment with regard to this issue.

Dated and mailed April 27, 2000
jacobti.urr : 132 : 6 : MC 630.07

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did consult with the ALJ regarding his impressions of witness credibility and demeanor. The ALJ indicated that his decision was based on doubts that applicant could engage in the activities depicted in the videotape given his presentation in the medical reports. The ALJ did note that the employe appeared to be having more back pain in the morning and noted that he did periodically stretch as if experiencing back problems. The commission disagrees that the videotape depicts activities inconsistent with the claimed injury.

cc: ATTORNEY MICHAEL FRAZIER
REINEHART BOENER VAN DEUREN NORRIS & RIESELBACH


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