Wisconsin Labor and Industry Review Commission --
Summary of Wisconsin Court Decision relating to Unemployment Insurance


Subject: CJW, Inc.  v. John Goodwin and LIRC, Case No. 04-CV-1704 (Wis. Cir. Ct., Racine Co., February 22, 2005)

Digest Codes: MC 652.4

Goodwin worked as a salesman for CJW, a beer distributor. He was selected for a random drug test. He was notified of a positive result for cocaine, and discharged. He denied use of any illegal drugs. The department’s Initial Determination found a discharge for misconduct, and an Appeal Tribunal affirmed. LIRC reversed, concluding that CJW’s proof of the alleged positive drug test result was inadequate.  Specifically, LIRC concluded that a laboratory report of a drug test offered by CJW to establish that Goodwin had tested positive for cocaine, was not sufficient.  CJW appealed, arguing that the medical review officer who signed the certification, while not having personal knowledge of the results, was relying on findings by the drug testing laboratory which had been certified by a person there whose name appeared on that laboratory’s form.

Held: LIRC’s decision is affirmed.

Under Wis. Stat § 108.09(4m), the contents of verified or certified reports by qualified experts constitute prima facie evidence as to the matter contained in the reports in any proceeding under this section, insofar as the reports are otherwise competent and relevant, subject to such rules and limitations as the department prescribes.  Wis. Admin. Code DWD 140.16 provides that, while hearsay evidence is admissible if it has reasonable probative value, no issue may be decided solely on hearsay evidence unless the hearsay is admissible under ch. 908, Stats.

The collector of Goodwin’s urine sample signed a certification that the urine samples collected from Goodwin at Kenosha Occupational Medical Clinic were transferred to the MedTox testing laboratory in Minneapolis. This was based on her personal knowledge and was sufficient to commence the chain of evidence. The problem here was with the proof of the drug test results. The position of CJW rises or falls on the issue of whether the a drug analysis report from the testing laboratory should have been admitted. 

LIRC relied on three prior decisions (Jewson v. Home Depot,  Shada v. Hondo, and  Seabrooks v. The Geon Co.), which excluded drug tests not properly certified under sec. 108.09(4m). CJW argued that those cases could be distinguished because here, its medical review officer who signed the department drug test certification form, while not having personal knowledge of the results, was relying on a MedTox form which had been certified by someone there. 

The  “MRO Verification” relied on by CJW,  appears to be a certification cosigned by Dr. Richard Goldberg and Dr. James Foster of Kenosha Occupational Medical Clinic. They did not have personal knowledge or involvement with the testing of the specimen, which took place at the MedTox testing laboratory in Minneapolis. In an after-the-fact affidavit appended to Plaintiff’s brief, Dr. Goldberg indicated that he relied on the “certification” of Robert Sheehan, whose name appears on the MedTox computer-generated laboratory report. Even if this explanation were accepted as the foundation for Dr. Goldberg’s certification, however, it would be insufficient. The MedTox report does not contain the signature of Robert Sheeran, nor does it state his credentials or involvement in the testing process. It is merely a computer-generated report that says “Certified by: SHEERAN, ROBERT”. The decisions relied upon by LIRC in making its determination in this matter all appear to require either a “signature” or “credentials from the lab analyst who performed the test”. Both are lacking here.

The computer generated MedTox report, devoid of both a signature of the person certifying the results and of a statement of that person’s credentials, is insufficient to meet the requirements of sec. 108.09(4m) and insufficient to provide the foundation for Dr. Goldberg’s purported certification of the results.

LIRC did not err in refusing to accept the results of the drug test. Without the test results, the record does not contain any competent evidence that Goodwin failed the drug test and was thus guilty of “misconduct” for unemployment insurance purposes. The only evidence provided by CJW that Goodwin tested positive for drugs was hearsay evidence. Since Goodwin denied drug usage and CJW offered no non-hearsay evidence to the contrary, LIRC correctly determined that it could not conclude that his discharge was for misconduct.

[LIRC decision]


Please note that this is a summary prepared by staff of the commission, not a verbatim reproduction of the court decision.

[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]