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

Subject: Christopher Johnson v. LIRC and Clopay Building Products Co., Inc., Case 06-CV-151 (Wis. Cir. Ct., Dunn Co., February 21, 2007)

Digest Codes: MC 630.07 - Dishonesty -Falsehood, concealment;    PC 733 LIRC Review, Reversal Of ALJ, Consultation

The employee had previously injured himself at work and not reported it timely, and he was warned that prompt reporting of work injuries was required. The employee then injured himself again while working one morning. He did not report the injury right away. He did eventually report the injury a couple of hours later, but when he made this report he lied about when the injury had occurred (saying it had just happened), where he had been in the plant when the injury occurred, and how it had happened. He then went home for the day. A couple of hours after this, the employee telephoned the employer and admitted that he had lied earlier when reporting the time and circumstances of the injury. The employer discharged the employee for falsification and failure to timely report his injury. The LID found misconduct. The ALJ reversed and allowed, and the employer appealed.

At the hearing before the ALJ, the employee had claimed that he did not report the injury at the time it occurred because he was unable to find a supervisor to make the report to. In his decision, the ALJ wrote of this claim, “The appeal tribunal concludes that the employee surely would have been able to somehow give notice to a supervisor that he had had the injury at 7:30 a.m.” (emphasis added). The ALJ’s ultimate decision of no misconduct was based on the theory that when the employee called the employer to admit his earlier report was false, he “corrected the matter soon enough.”

The commission reversed. The commission’s decision stated that it rejected the employee’s claim that he could not find a supervisor. The commission also disagreed with the ALJ’s reasoning that by eventually reporting his falsification the employee “corrected the matter”. The commission consulted with the ALJ, and its decision indicated this.

On appeal to the circuit court, the employee argued that the commission did not meet the Transamerica requirement that the commission explain disagreements with the ALJ on questions of fact. The employee contended that the ALJ’s statement showed that he had in fact credited the employee’s testimony that he could not find a supervisor, so that the commission’s rejection of that testimony by the employee was unexplained.

Held: Affirmed. The findings of fact of the ALJ, and of LIRC, are not at all disparate. It cannot be said that LIRC and the ALJ made different findings of fact, or as to credibility, at least on this contested issue. Their differences were in their legal conclusions. Legal differences do not trigger the special requirement of consultation of record and separate explanation. Turning to the legal issue of misconduct, and noting the uncontested facts that the employee not only failed to immediately report his accident but subsequently gave a false statement about the circumstances of the accident, the court holds that LIRC reasonably found misconduct on those facts.

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

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