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


JOSE M CASTANON, Employe

BLUEMOUND AUTOMOTIVE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00603977MW


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 eligible for benefits, if otherwise qualified.

Dated and mailed July 20, 2000
castajo.usd : 145 : 3   PC 714.04

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

In its petition for commission review the employer asserts that the ALJ erred in determining that the discharge was not for misconduct. The employer asserts that there was no evidence in the record to substantiate the employe's claims that something fell on the hood of the car he was driving. However, the employe's own testimony is firsthand evidence that supports the ALJ's findings of fact. The employer produced no firsthand evidence to refute the employe's testimony. Had the employer furnished testimony of an expert witness at the hearing, it may have been able to rebut the testimony of the employe. However, it failed to do so. While the employer asserts that it is now willing to furnish such information, the commission does not generally hold further hearings but reviews the record made by the ALJ. While the commission does have the discretion to order the taking of additional evidence in matters before it, that authority is exercised only in a few exceptional circumstances. There is nothing in the record that suggests that the employer's opportunity to present evidence at the hearing was improperly limited at the hearing, or that a party has discovered material noncumulative evidence since the hearing which they could not have known of before the hearing. Therefore, further hearing will not be granted.

 

PAMELA I. ANDERSON, COMMISSIONER (Concurring):

I write separately because I have trouble believing the employe's version of how the accident occurred. He said he saw something fly off from a truck and he ducked down and turned to the right for the off ramp on 68th Street. Then he believed that the object hit the hood of the vehicle. Both the employe and the employer seemed to agree that there was damage to the vehicle near the top of the windshield. The employer was more specific about damage on both sides at the top and the springs sprung on the hood. There is no indication that the owner of the employer is an expert on accident damage. The second witness for the employer was not identified at the hearing other than he is an employe of the employer. Thus the employer presented no first hand evidence to prove that the employe was not telling the truth.

For misconduct purposes, the employer has the burden of proof. Simply because I doubt the employe's version of the events in this case does not establish the employer's version. The employer needed either of the body shop people or the adjuster who could have testified as to how the accident must have occurred and why. If one of those people had testified, the administrative law judge should have accepted the insurance adjuster's report because hearsay evidence can be used to support other evidence. He also could have accepted the report but indicated he could not make any findings solely on that information because it was hearsay.

For these reasons, I concur in the decision to allow benefits to the employe because the employer has not proven their case.

_______________________________________
Pamela I. Anderson, Commissioner


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