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


BARBARA J BIGNELL, Employee

KMT REFRIGERATION INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00200603NR


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 employee is eligible for benefits as of week 10 of 2000, if otherwise qualified.

Dated and mailed October 3, 2000
bigneba.usd : 145 : 2  PC 714.02

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

In its petition for commission review the employer asserts that the ALJ erred when she considered the surveillance report to be hearsay. The employer asserts that this report clearly falls within the business records exception of the hearsay rule, because it was made in the regular course of business and maintained as a record of the Company. The commission disagrees. The surveillance report was made for the purpose of determining whether applicant's worker's compensation claim was fraudulent. Even if the commission considered the surveillance report to be a business record, it would be accorded little weight. The investigator's report indicates that a person the investigator believed to be the employee was shoveling snow. There is no specific information about the weight of the snow, or the manner in which it was shoveled.

The employer has not demonstrated that the employee's alleged refusal to keep a doctor's appointment had some bearing on its discharging her. She was discharged for falsifying a worker's compensation claim and for failing to complete her probationary period.

cc: KOLPAK

ATTORNEY MICHAEL JACOBSON
HABBARBACK LAW OFFICES

SUSAN M LOVE
ATTORNEY AT LAW
DAVIS & KUELTHAU SC


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