Wis.LIRC WC Decision: Bender - October 25, 2000 - ND � 8.17 - Formal Hearing Procedure - no error in allowing cross-examination of applicant on his UC claim following his discharge; �108.101(1) only precludes use of actual findings of fact, determination, decision or judgment, and does not preclude testimony as to outcome of disputed UC claim

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

LLOYD BENDER, Applicant

MAYSTEEL CORP MENO FALLS, Employer

CONNECTICUT INDEMNITY CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1997042206

An administrative law judge (ALJ) for the Worker's Compensation Division 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 order in that decision as its own.

ORDER

The findings and order of the administrative law judge are affirmed.

Dated and mailed October 25, 2000
benderl.wsd : 175 : 5 ND � 8.17

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The applicant contends in his petition for commission review that the administrative law judge erred in determining that the applicant did not sustain an injury arising out of his employment while performing services growing out of and incidental to his employment on May 20, 1997. The applicant testified that he was injured on May 20, 1997 while replacing seals of a hydraulic cylinder while using a wrench when he yanked and felt pain in his chest from his right shoulder to his right nipple. The applicant testified that he reported the injury promptly to his supervisor, Mr. Roecker, but that he did not feel that he needed to go to see a physician at that time. The applicant further contends that the administrative law judge erred in allowing the applicant to be cross-examined concerning the outcome of his unemployment insurance hearing concerning his discharge from the employer in violation of Wis. Stat. � 108.101(1). However, the statute precludes introduction into evidence of the actual findings of fact, determination, decision or judgment and no such actual findings of fact, determination or decision were entered into evidence in this case. Wis. Stat. � 108.101(1) does not preclude testimony from an applicant concerning the outcome of his disputed unemployment insurance claim.

Mr. Roecker testified that the applicant did not inform him on May 20, 1997 that he had been injured on that day but rather reported the injury the following day on May 21, 1997 stating that he had injured his neck and shoulder while working on May 20. The employer entered into evidence prior reports of injuries that the applicant had made on the actual date that the injuries had occurred. Mr. Roecker testified that if the applicant had reported an incident to him on May 20, 1997 as he contended that he would have made a note of that injury on that date. The employer's records do not reveal that the applicant reported any injury to Mr. Roecker or anyone else on May 20, 1997.

The administrative law judge who could observe the demeanor of witnesses and therefore was in a good position to make a determination as to credibility did not credit the applicant's version. Based upon an independent review of the evidence in the record the commission has found nothing to warrant overturning the administrative law judge's credibility determination. The evidence indicates that the applicant had reported even minor problems on the day they occurred in the past. In addition, the applicant admitted that he had not given an accurate history to Dr. Lemon. The applicant informed Dr. Lemon that he did not mow the lawn but rather that his wife was in charge of those duties. The applicant admitted that he also made statements to the unemployment insurance staff which were untrue. Given the fact that the applicant made untrue statements to Dr. Lemon and given the fact that the applicant had reported prior injuries including even minor occurrences on the day they occurred on several instances in the past and based on Mr. Roecker's testimony that the applicant did not report any injury to him on May 20, 1997, the evidence was sufficient to establish a legitimate doubt that the applicant was injured at work on May 20, 1997. Therefore, the applicant's claim for benefits was appropriately dismissed.

cc: ATTORNEY ROBERT C ANGERMEIER
ANGERMEIER & ROGERS

ATTORNEY RONALD C CAFARO
HALLING & CAYO SC

[ Search Decisions ] - [ WC Legal Resources ] - [ LIRC Home Page ]