UC Decision Digest - 1991-1994 case summaries; plaintiff names H - L  

This file contains  the summaries of court decisions collected in the 1991-1994 edition of the Unemployment Compensation Decision Digest  for cases with plaintiff names beginning with H through L.

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Thomas G. Haar II v. LIRC, No. 92-CV-720 (Wis. Cir. Ct. Waukesha County May 24, 1993)

The employe-plaintiff, representing himself, failed to name the employer as a party defendant in his action for judicial review. The commission moved to dismiss on jurisdictional/competency ground.

Held: Motion granted.

Samuel B. Hagedorn v. LIRC, No. 92-CV-008008 (Wis. Cir. Ct. Milwaukee County July 17, 1992)

Plaintiff-employe commenced an action for judicial review in which he failed to name his employer as a defendant. He failed to set forth any of the statutory grounds stating a cause of action. The commission moved to dismiss.

Held: Motion granted in written decision on the sole ground that plaintiff failed to name his employer as an adverse party.

David C. Halbrucker v. LIRC and Sawyer Farms and Meat Plant, Inc., No. 93-CV-2178 (Wis. Cir. Ct. Waukesha County June 16, 1994) 

The plaintiff-employe worked about two years for the employer, a business engaged in operating a grocery store and processing meat for retail and wholesale sales. The employe worked as a route driver delivering products and at various other duties. He was paid by the hour and voluntarily performed additional duties working extra hours. Because the employe did not complain to his supervisor regarding the extra duties he performed, the supervisor considered he performed them willingly in an effort to learn more about the business.

About a month before he quit, the employe complained to his supervisor that co-Worker's were not putting product in the proper spaces in the freezer. The supervisor conferred with other employes encouraging them to put product in the proper spaces in the freezer. The employe complained to the owner and his two sons about a week before he quit. The complaint was that he was late starting his route because co-Worker's were not getting product ready for him with the result that he had to do so. He was told not to worry about being late on his route. The employer then met with employes in an attempt to instill the idea that employes were to work together rather than push duties off on someone else.

On the employe's last day of work, after punching in on the time clock, he was asked by one of the brothers to obtain product from the freezer. When he inquired about the whereabouts of the other brother and a co-worker who normally did this, he was told they were not there. He told the brother that he quit and he punched out.

The ALJ allowed benefits on the ground that the numerous duties the employe was called upon to perform and for which he was not hired gave him good cause for quitting. The commission, after conferring with the ALJ on credibility and demeanor, reversed. The commission noted that an employer has some latitude in assigning tasks and that the additional duties assigned the employe were not so different from the duties he was hired to perform. His quitting was therefore not justified.

Held: Affirmed. The findings of fact are supported by both the employe and his supervisor's testimony. Although the commission's conclusion is not binding on the court, the commission's conclusion is entitled to great weight based on its knowledge and competence.

Marquerite A. Hall v. LIRC and ARA Services, Inc., No. 91-CV-302 (Wis. Cir. Ct. Kenosha County March 24, 1992) 

The plaintiff-employe had worked for defendant vending and food service company for almost 11 years as office manager. On December 29, 1989 the employe gave the employer two weeks written notice of terminating her employment. Her resignation stated it resulted from increased workload, denial of a pay raise and denial of a promotion. LIRC reversed appeal tribunal decision and denied benefits.

Held: Affirmed. The employe's workload had increased, but as a manager and supervisor she was expected to work more than normal hours at peak times. She had asked for a pay raise and wasn't given an answer but had received a merit increase in September, 1989. Rather than complain about the increased work and ask for more help, she resigned. Her failure to give the employer an opportunity to address her concerns was unreasonable and not the employer's fault.

Thomas H. Hansen v. LIRC, No. 90-CV-1314 (Wis. Cir. Ct. Kenosha County October 28, 1991)

A department audit revealed that individuals performing services for the plaintiff as court reporters were statutory employes for unemployment tax purposes. An initial determination assessed the plaintiff based on the compensation paid by the plaintiff to the court reporters.

An appeal tribunal affirmed the initial determination. The commission affirmed the findings of the administrative law judge that the plaintiff had exercised "control or direction" over the services performed by the court reporters and that the court reporters had not performed their services in "independently established" trades, businesses or professions.

Held: Affirmed. There was substantial credible evidence in the record to support the commission finding that the plaintiff had exercised control or direction over the services performed by the court reporters at issue. The court specifically notes that the plaintiff's own testimony at the hearing established that the success, if not the very continuation, of the plaintiff's business depended on the services performed by the court reporters. Accordingly, the plaintiff's own testimony established that the services performed by the court reporters were "integrated" into the business activity in which the plaintiff was involved. Such "integration" constituted credible evidence that the plaintiff necessarily exercised control or direction over the services performed by the court reporters.

Carolyn Harmon v. James R. Meier, Commissioner of LIRC, No. 92-CV-011913 (Wis. Cir. Ct. Milwaukee County September 28, 1992) (Bench Decision)

Plaintiff-employe commenced an action for judicial review of a number of commission decisions in which she failed to name any of her school district employers where she had worked as a substitute teacher. The commission moved to dismiss.

Held: Motion granted.

Germaine M. Harris v. LIRC, State of Wisconsin, DILHR, UC, Central Wisconsin Cleaning Service, Inc., Kathy E. Dunn, d/b/a Central Wisconsin Cleaning Service, No. 93- CV-147 (Wis. Cir. Ct. Waushara County October 15, 1993)

Plaintiff-employe alleged that she was discharged by her employer. She was held to have quit her employment at all administrative levels. She commenced an action on her own behalf against all of the defendants alleging she sustained damages for the employer's wrongful discharge.

The commission moved to dismiss plaintiff's action for failure to state a cause of action as required by sec. 102.23 (1)(b) and (e), Stats.

Held: Motion to dismiss as to the commission and the department granted. However, plaintiff's action against her prior employer is not dismissed.

Windy R. Harris v. LIRC and Boston Store, No. 93-CV-005986 (Wis. Cir. Ct. Milwaukee County June 14, 1994) 

Employe was warned that if her tardiness continued she would face dismissal. Employe responded by insisting to employer's human resources manager that she could not continue working under the stress of facing possible dismissal and that she had been late again that day so she might as well be let go. When employe was told that she had merely been given a warning and was not being fired, she persisted in arguing that if employer required her to not be tardy she might as well be terminated. Eventually, when she refused to leave, the human resources manager terminated her. ATD and commission found that she was not terminated, but quit, and without good cause attributable to the employer.

Held: Affirmed. The finding of fact that employe voluntarily terminated her employment is supported by the evidence, which reasonable minds could find established that employe intended to quit. The court will not address employe's claims that certain exhibits were "falsified" because the believability of evidence is a credibility issue reserved to the commission. The conclusion of no good cause attributable to the employer is reasonable: employe's attendance was such that under employer's attendance policy, she was appropriately warned of the possibility of discipline.

Craig A. Harvey v. LIRC and Robert Hansen Trucking, Inc., No. 93-CV-388 (Wis. Cir. Ct. Rock County June 2, 1994) 

The newly-hired employe was on his first assignment for the employer as an over-the-road truck driver. He delivered his first load at Pennsauken, New Jersey, but was delayed in unloading, and telephoned his supervisor to inform him of the delay and of the fact that he would be late to his next-scheduled stop at Hanesport, New Jersey. The employe also telephoned the customer in Hanesport to let it know he would be late. The employer had given the employe specific instructions regarding which route to take from Pennsauken to Hanesport. It was the employer's policy to provide such specific route information in order to avoid problems.

The employe was in a hurry to get to the customer in Hanesport, because he knew that if he arrived there too late the customer's loading dock would be closed. Accordingly, he chose to take a more direct route than the one he had been instructed to take by the employer. This route was directly over New Jersey Highway 537.

While heading east on Highway 537, the employe failed to observe a sign which warned of a low viaduct clearance approximately one mile ahead. The viaduct clearance was approximately 12 feet six inches, and the employe's truck trailer was approximately one foot higher. The employe proceeded to drive the truck trailer into the underpass causing $6,100 damage to the trailer, minor damage to the tractor, wrecker bills, damage to the cargo and substantial cargo storage costs. Total losses were in excess of $20,000. When the employe returned home the employer discharged him due to the circumstances surrounding the accident and its severity.

The appeal tribunal found no willfulness, and negligence of insufficient degree to reach the level of misconduct. The commission reversed and found that the employe substantially disregarded the employer's interests by choosing not to follow the employer's route instructions. The commission also found that the employe's negligence was so substantial as to amount to misconduct.

Held: Affirmed. Emphasis is placed on the employe's failure to follow the employer's route instructions, and his failure to inform his supervisor of his plan to change routes. While reasonable minds might differ over the commission's legal conclusion that the employe's actions amounted to misconduct, the commission's decision is one reasonable conclusion, and the standard of review requires affirmance.

James J. Haskett v. LIRC and Akrosil Division, International Paper Company, No. 92- CV-601 (Wis. Cir. Ct. Outagamie County January 28, 1993) 

The employe, a quality control inspector, was discharged in part for allegedly failing intentionally to remove a defective section from a roll of paper. The defective section was indicated by a red mark on the roll, which was still present after the employe "passed" it. He claimed that he took out the section of defect, and that he had never been told that he also had to remove other sections that were under the red mark. The ALJ believed him and found no misconduct since his failure was not intentional. After consultation with the ALJ, LIRC reversed, concluding that the employe was not credible when he claimed not to have known what he did was wrong. In the consultation, the ALJ had stated that because of the length of time between the hearing and the telephone conference (one year), she did not remember any credibility impressions that she had at the time of hearing. Employe argued that because of this, the commission had not adequately complied with the requirements of Braun that it consult with the ALJ to obtain personal impressions as to credibility.

Held: Reversed. Based on a 7th Circuit Court of Appeals case arising under SSD, the court held that ALJ credibility findings must be affirmed unless patently wrong and that the commission must honor the ALJ's judgment even if it doesn't agree with since the credibility determination must result from the ALJ. With respect to the ALJ's assertion of lack of recollection, the court holds that without the ALJ's judgments regarding witness demeanor, LIRC cannot overrule the ALJ. Finally, the court holds that even if LIRC had authority to make the credibility determination, that determination was faulty since the facts relied on by LIRC to find the employe incredible had another plausible explanation.

(Reversed in unpublished per curiam decision No. 93-0429, 178 Wis. 2d 879 (Ct. App. 1993).)

Geraldine S. Hauf v. LIRC and Willows Nursing Home (Unicare Health Facilities, Inc.), No. 92-CV-4100 (Wis. Cir. Ct. Dane County June 8, 1993) 

Plaintiff-employe worked over eight years as dining-services manager for co-defendant nursing home. Her duties included hiring and discharge of about six employes whose work she scheduled as the manager of the dietary department.

On September 26, 1991, the employer's administrator gave permission to Ms. Brown, a cook supervised by the employe, to leave work early. When Ms. Brown advised the employe of the administrator's authorization to leave work, the employe became irate. The employe told Ms. Brown that she (the employe) would not complete Ms. Brown's work and that Ms. Brown would not be permitted to leave unless the administrator completed the work. Ms. Brown remained on the job until the end of her shift, instead of leaving early.

On September 27 Ms. Brown advised the administrator that she had not left work early as initially planned and that she was quitting because the employe's actions were so upsetting. Ms. Brown was requested to and did remain on the job because it was the employe's day off. The employe, however, came to the establishment for her paycheck. She questioned Ms. Brown and chastised her using obscenities and vulgar expressions. Ms. Brown left the premises with her personal belongings.

On October 2 the employe was suspended pending investigation. She was discharged on October 5, 1991, for verbally abusing a co-employe, contrary to the employer's work rules known to her.

On October 7, 1991, the employe filed claim for benefits. She was scheduled for group registration on October 9 but she was unable to attend because she was in jail from October 8 to October 19 as a result of an arrest in March 1991 for driving under the influence. Her request to attend the group registration and Huber privileges was denied.

Benefits were denied at all administrative levels on the ground that she was discharged for misconduct connected with her employment and for weeks 41 and 42 of 1991 on the ground that she was not able and available for work.

Held: Affirmed as to both misconduct and able and available issue.

Kathy Susan Hayes v. LIRC and Pfister & Vogel Tanning Co., No. 92-CV-001651 (Wis. Cir. Ct. Milwaukee County November 18, 1992)

The employe worked about two years for the employer, a tanning business. During her employment she was frequently absent from work. Many of her absences were for a valid reason and with notice to the employer prior to the start of her shift as required by its rules. Some of her absences, however, were without notice for which she was warned. Her last absence several days before she was discharged was without notice and she was discharged.

Reversing the initial determination, the ALJ allowed benefits. Reversing the ALJ, the commission denied benefits.

Held: Affirmed. The commission's findings of fact are supported by credible and substantial evidence and reasonable inferences therefrom. Those facts support the commission's conclusion that the employe was discharged for misconduct connected with her employment.

Frederick J. Hendricks v. LIRC & Regency Partners, Ltd. Ptr., No. 94-CV-001794 (Wis. Cir. Ct. Milwaukee County October 11, 1994) 

Plaintiff-employe, timely appealed and requested a hearing from an initial determination dated March 5, 1992, suspending benefit eligibility. Hearing notices were mailed to the parties at their last-known addresses. The employer appeared but the employe did not. An ALJ's dismissal decision dated May 6, 1992, was mailed to the parties' last-known addresses. On December 9, 1993, or some 90 weeks after requesting a hearing, the employe, in a letter, set forth that he had not received notice of hearing or a copy of the ALJ's decision. He was notified his letter was being processed as a late petition for commission review.

The commission held that although plaintiff contended that he had not received notice of hearing or the ALJ's dismissal decision, he had waited over one and one-half years to determine the status of his appeal. This was an unreasonable delay by plaintiff and his untimely petition for review was not for a reason beyond his control.

Held: Affirmed. The address plaintiff used in the commencement of this action is the same address the notice was mailed to.

The commission's finding that plaintiff waited an "unreasonably long time to determine the status of his appeal" is a question of fact. The conclusion that plaintiff's untimely filing was not based on any reason beyond plaintiff's control is a question of law. The record shows that the findings of fact are supported by substantial and credible evidence and the conclusions of law are reasonable. Even assuming, as the commission did, that plaintiff never received the decision that his hearing request was dismissed, it was unreasonable, as a matter of law, for plaintiff to wait over 18 months to determine the status of his appeal.

NOTE: Computer records show that between August 28, 1985, and the initial determination in this matter, nine appeal tribunal decisions, five commission decisions, and one circuit court decision had been mailed to plaintiff in cases in which he was a party.

Regina Hill v. LIRC, No. 94-CV003392 (Wis. Cir. Ct. Milwaukee County May 2, 1994) (Bench Decision)

Plaintiff's action for judicial review failed to name her employer as an adverse party, the summons was not signed or authenticated and the summons did not meet many of the statutory requirements for a summons. Because of such defects, the commission moved to dismiss.

Held: Motion granted.

David J. Hoban v. LIRC and Lutheran Social Services, Wisconsin/Michigan, United Way of Greater Milwaukee, Inc., No. 90-CV-647 (Wis. Cir. Ct. Eau Claire County April 29, 1991) (Bench Decision)

Hoban was a supervisor of two residential treatment facilities. He assisted a part-time employe under his supervision in banking the part-timer's hours, i.e., shifting hours worked in one pay period to another pay period's time records, so that the part-timer could keep his hours low enough to avoid a reduction in social security benefits. This violated written rules of the employer, intended to insure compliance with wage and hour laws, that employes were to be paid based on hours actually worked in a pay period.

Additionally, the employe failed to pay certain other employes for time they spent in attendance at staff meetings when that time brought them over 40 hours per week. This last violation resulted in an audit by the wage and hour division as a result of which the employer was required to pay almost $8,000 in back pay upon a finding of a violation of wage and hour laws. The employe was discharged for violating these rules.

The commission affirmed the appeal tribunal's finding of misconduct, noting that even if the employe's conduct was not considered an intentional disregard of the employer's interests, the employe's conduct amounted to such a degree of serious carelessness that it was equivalent to misconduct.

Held: Affirmed. Substantial evidence supports the findings of the commission, that the employe violated the employer's rules with respect to the "banking" of hours and with respect to the nonpayment of employes for attendance at staff meetings. The employe either was or should (as a supervisor) have been aware of and familiar with the employer's rules which were violated, and the employe's actions constituted carelessness or a high degree of negligence of such a degree as to warrant a finding of misconduct.

Allen F. Howrth v. LIRC, County of Fond Du Lac and Mercury Marine, Division of Brunswick, No. 90-CV-747 (Wis. Cir. Ct. Fond du Lac County November 6, 1991) 

The plaintiff-employe worked two hours a day seven days a week as a seasonal caretaker during ten successive seasons for the county in its park system. He lived about 100 feet from that work and about 20 miles from his full-time job with Mercury Marine. On June 15, 1990, the employe moved his residence about 20 miles away in order to be nearer his full-time job. He quit the part- time position July 22, 1990, due to the commuting distance. He was laid off from his full-time job on August 10, 1990.

The ALJ, affirmed by the commission, noted that while the employe was losing money working at the seasonal job for the county because of the commuting distance, the economically unfeasible provision is not applicable because he quit the part-time job before he lost his full-time employment. He did have a valid personal reason for quitting the part-time job but such reason was not for any reason which would allow for the payment of U.C.

Held: Reversed. To affirm the commission is to penalize a person for holding more than one job. It is apparent he has no claim against the county for benefits where he elected to remain with his main occupation. To deny benefits "for terminating a part-time job which had outlived its economic usefulness is an absurd result." The court accepted the arguments of plaintiff's attorney that plaintiff's quitting would allow for benefit payments under both sec. 108.04 (7)(r) or (l), Stats.

Mitchell Hubert v. LIRC, Wisconsin Public Service Corp., and Ansul Fire Protection, No. 91-CV-361 (Wis. Cir. Ct. Marinette County December 2, 1993)

Employe, who was employed in a management position earning approximately $50,000/year, was laid off. He received 12 weeks' severance pay after the lay off. At around the time that his severance pay ran out, he turned down an offer of work in a position doing marketing for a utility, which paid approximately $22,000 with benefits. He was held disqualified by LID, ATD and LIRC under 108.04 (8), Stats., for having refused an offer of suitable work without good cause. His argument that the "canvassing period" provision in sec. (8)(d), Stats., did not come into play until his severance pay was exhausted, was rejected.

Held: Reversed. The circuit court joins LIRC in rejecting employe's "canvassing period" theory, and agrees that the receipt of severance pay does not affect the running of the canvassing period. However, LIRC erred in finding that there was a refusal of suitable work without good cause. The employe's high level of education and high rate of pay at his previous job gave him good cause to refuse the offered job.

(Reversed by published decision 186 Wis.2d 590, 522 N.W.2d 512 (Ct. App. 1994) 9445. Petition for supreme court review denied October 26, 1994, 187 Wis.2d XVI).

Hubert v. LIRC et al., 186 Wis. 2d 590, 522, N.W.2d 512 (Ct. App. 1994) 9445, Petition for Review denied, 187 Wis. 2d XVI

Employe, who was employed in a management position earning approximately $50,000/year, was laid off. He received 12 weeks' severance pay after lay off. At around the time that his severance pay ran out, he turned down an offer of work in a position doing marketing for a utility, which paid approximately $22,000 with benefits. He was held disqualified by LID, ATD and LIRC under 108.04 (8), for having refused an offer of suitable work without good cause. His argument that the "canvassing period" provision in (8)(d) did not come into play until his severance pay was exhausted, was rejected.

Circuit Court reversed. It joined LIRC in rejecting employe's "canvassing period" theory, and agreed that the receipt of severance pay does not affect the running of the canvassing period. However, the circuit court concluded that LIRC erred in finding that there was refusal of suitable work without good cause. It held that employe's high level of education and high rate of pay at his previous job gave him good cause to refuse the offered job.

Held: Reversed, and LIRC decision reinstated. Because LIRC has long-standing experience, technical competence and specialized knowledge in administering the unemployment compensation statutes, its interpretation and application of those statutes is entitled to great weight. The receipt of severance pay does not affect the running of the canvassing period. It was reasonable and consistent with the policies enunciated in sec. 108.01, Stats., for LIRC to apply a "sliding scale" analysis whereby the length of the claimant's unemployment extending beyond the six-week canvassing period is considered along with the claimant's training and experience in determining if there has been a refusal of "suitable work" without good cause under sec. 108.04 (8)(a), Stats. In this case, in which the salary offered was reasonable for the job offered, the prospects for employment comparable to claimant's former employment were slim in his labor market. Claimant had been unemployed for a substantial period of time. LIRC properly concluded that claimant failed to accept suitable work without good cause.

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Andy Jakab v. LIRC and Scitex Corp., No. 92-CV-1061 (Wis. Cir. Ct. Waukesha County August 17, 1993) 

LIRC affirmed DILHR's decision "estimating" claimant's self-employment income in 1989 and 1990 based on figures disclosed in claimant's 1990 tax return. On appeal, claimant argued only that he should have been granted further hearing to be allowed to present additional evidence he did not present at the original hearing.

Held: Affirmed. Although the court agrees that the interests of justice would have been promoted by further hearing, it notes that ALJ and LIRC both reasoned that further hearing was not appropriate because claimant had the information available to him at the time of the original hearing, and on this basis that it cannot be said that there was a "flagrant abuse of discretion" in the denial of further hearing.

Michael J. P. Jankowski v. LIRC and Richard D. Goldberg, Principal Agent of RDG, Inc., No. 93-CV-007097 (Wis. Cir. Ct. Milwaukee County June 7, 1994) 

The plaintiff-employe worked about two years as a telemarketer for the employer. October 21, 1992 was his last day of work. The next day he requested a leave of absence to run for president. His request was denied. He left the employer's establishment contending he was discharged.

The employe contended in the alternative that he was justified in quitting because the employer refused his request for the leave. Benefits were suspended at all administrative levels on the ground that his quitting was not within any exception.

Held: Affirmed. It appears that the employe is raising five issues which will be considered in order.

First Amendment free speech guarantees and the State Constitution cannot be read as requiring employers to grant their employes leaves of absence to run for public office.

The employer here is not a state making the constitutional right of free speech inapplicable (citing cases).

Although there is a fundamental public policy evidenced by statute which creates exceptions to the employment-at-will doctrine, it applies only to cases where the employe is discharged. As plaintiff was found to have quit, the argument is irrelevant.

The employe's letter to the commission stating the hearing examiner intentionally shaded the truth would not support an allegation of fraud against the commissioners on the ground the commission did not consider additional facts presented to them.

That evidence outside the record may be taken under some circumstances does not mean a person is entitled to a jury trial when petitioning for review of an agency decision. Review is limited to questions of law under sec. 108.09 (7)(b), Stats., and review is expressly limited as provided in sec. 102.23, Stats. No jury trial is provided for.

Even if the employe considers that he was more believable than the employer, credibility is to be determined by the commission. There are statutory standards of judicial review which limit a court's review. Here, the findings that the employe's actions were inconsistent with a continuation of the employment relationship shows there is substantial and credible evidence supporting the commission's determination.

NOTE: In Michael J. P. Jankowski v. Richard D. Goldberg and RDG, Inc., a Wisconsin Corporation, 93-C-858 (E.D. Wis. Oct. 15, 1993), the employe raised a similar issue "clothed is the guise of a civil rights complaint" that his First Amendment rights were violated by the denial of his leave of absence request. Defendant's motion to dismiss was granted on the ground the federal district court lacked UC Digest jurisdiction and failure to assert a claim upon which relief can be granted. In order to establish a claim of deprivation of rights under the Civil Rights Act a plaintiff must show both that constitutional rights were violated and that the defendants acted under color of state law plus claims made directly under the First Amendment relate to the federal government and not private persons. Here there is a lack of state action. Whatever disagreements plaintiff may have with DILHR employes and Branch 27 of the Milwaukee Circuit Court are not relevant to whether he has stated a federal claim. Federal law does not provide relief for employment decisions which are not based on prohibited reasons such as here where there was a termination for taking an unauthorized leave.

Ronald J. Janz v. LIRC and Lawrence W. Krause, No. 92-CV-1566 (Wis. Cir. Ct. Outagamie County September 1, 1993) 

Plaintiff-employe worked about ten months as an over-the-road driver. He operated a leased unit for the employer until he was discharged about September 25, 1991, because the employer's insurance carrier refused to insure the employe due to his driving record during his employment.

In March of 1991 the employe received a speeding citation for traveling at 71 miles per hour in a 55 miles zone per hour. In June of 1991 he damaged the employer's trailer when he hit a post in a customer's lot. On August 23, 1991, he rear-ended a vehicle that had pulled in front of him to make a left turn. The next day he rear-ended another vehicle. His driving privileges were suspended by the employer for three days. On September 21 he attempted to make a right turn from a center lane. He was unaware until the next day that he had struck a vehicle that had pulled into the far right lane, which vehicle he had observed in his rear view mirror. He had assumed the driver would let him complete the right turn.

The employe and the employer were notified by the company, which leased the vehicle from the employer, that the employe could no longer be dispatched as insurance coverage could not be provided for him.

The commission reversed the ALJ's decision, denied benefits and established an overpayment.

Held: Affirmed. The facts are essentially not in dispute. The commission while analyzing the facts as the ALJ, reached a different legal conclusion based mainly on their determination that the employe was more responsible for several of the accidents than the ALJ determined. The commission concluded that the number of accidents and violations during a relatively short period of time established a pattern of gross negligence manifesting equal culpability. Such actions established a wilful and substantial disregard of the employer's interests and of the standards of conduct the employer had a right to expect of him.

Kallin J. Janzen v. DILHR, LIRC, (and) Commissioner Pamela I. Anderson, No. 91-CV- 296 (Wis. Cir. Ct. Washington County May 30, 1991) (Bench decision)

Plaintiff-employe's action for judicial review failed to name his employer as a party defendant and also failed to set forth a cause of action. The commission moved to dismiss.

Held: Motion granted.

Catherine A. Jirak v. LIRC and Jon A. Sydejko, No. 92-CV-256 (Wis. Cir. Ct. Chippewa County February 19, 1993) 

The plaintiff-employe worked as a home health care provider for co-defendant Sydejko who had terminal cancer. The employe was discharged for falsification of the hours she worked as reported to the county agency, for failing to perform a number of her duties, and for leaving the employer for several days without arranging for a replacement.

The employer requested a hearing and hearing notices were mailed to the parties. The employer's new home health care provider, according to a note in the file, requested that the hearing be held at the employer's apartment because the employer was homebound. Request was denied but the care provider was told that the ALJ could telephone him if the telephone number was provided. The employe appeared in person at the hearing and the employer appeared by telephone.

The ALJ reversed the initial determination and denied benefits. The employe retained an attorney, who petitioned the commission for review, asserting before the commission a number of issues not before the ALJ. The commission modified and affirmed the ALJ's decision explaining in part in its MEMORANDUM OPINION that the employer had appeared at the hearing, albeit by telephone, and that such appearance by telephone was permitted by Wis. Admin. Code sec. ILHR 140.11.

Held: Affirmed. The employe's sole complaint is that the commission acted without and in excess of its powers in affirming the ALJ's decision permitting the employer to appear and to testify by telephone. There is nothing in the law or that record to suggest that the commission failed to act in accord with its jurisdiction.

The commission's brief fully addresses the issue. The employe did not object before or during the hearing and there is no evidence that the ALJ was unable to determine the weight or credibility of the employer's testimony. There is no law or rule prohibiting the receiving of telephone testimony. Considering the employer's physical condition it would be impracticable to require that he travel any distance to the hearing location.

Alan G. Johnson d/b/a the Everest Group v. LIRC, No. 91-CV-369 (Wis. Cir. Ct. Eau Claire County September 20, 1991) (Bench decision)

Plaintiff-employe failed to timely appeal within the 30-day period to commence action for judicial review. Plaintiff also failed to name the employe, (Peter D. Ritter), an adverse party, as a party defendant. The commission moved to dismiss.

Held: Motion granted.

Alan Guy Johnson v. LIRC, State of Wisconsin and Hotel Operating Co., d/b/a Civic Center Inn, No. 91-CV-113 (Wis. Cir. Ct. Eau Claire County November 21, 1991) 

Plaintiff-claimant filed claim for unemployment benefits after his employment ended as general manager for a hotel. He reported to the U.C. office that he was self-employed. Various initial determinations were issued concerning the claimant's estimated self-employment income based on information he supplied. Benefits were paid to him in 1989 based on no self-employment income.

The claimant's 1989 Income Tax Return Schedule C showed claimant's self-employment income for 1989 was such that if it was averaged over a 52-week period the self-employment income treated as wages for U.C. benefit rate purposes under sec. 108.05 (8) Stats, was in excess of his benefit rate. On November 2, 1990, an initial determination was issued covering the period from January 1, 1989 through December 9, 1989. An overpayment was established from which claimant appealed.

The appeal tribunal's decision as modified by the ALJ affirmed the initial determination and was affirmed by LIRC. Claimant had contended that it was unfair to attribute his self-employment income in equal weekly amounts because early in the year (January through March) his business operated at a loss. He, however, could not provide the actual accurate amount of weekly self- employment income so under the specific formula set forth in the administrative code, his self- employment income had to be estimated. He was therefore considered to have been engaged in the promotion of his business throughout 1989 and self-employed throughout that year. In addition, the evidence showed that he filed claims in November and December of 1989.

Held: Affirmed. The findings of fact adopted by the commission are supported by credible and substantial evidence and reasonable inferences therefrom, which includes the finding that he was engaged in the promotion of his business and self-employed the entire year of 1989. The overpayment conclusion was reasonable and has a rational basis.

Note: 1991 Wisconsin Act 889, section 39, repealed sec. 108.05 (8), Stats. The repeal first applies with respect to benefits payable for weeks of unemployment beginning on December 29, 1991 (week 1 of 1992).

Plaintiff names ending with K:                       (Go to: [Top of this page] - [Main UC Digest Index] )


Richard R. Kadamian v. LIRC and CDI Corporation, No. 91-CV-251 (Wis. Cir. Ct. Racine County February 18, 1992) (received March 30, 1992) 

The employe worked as an account executive for the employer, a concern engaged in the temporary placement of engineers. The employe entered into an employment contract when he started working which contained restrictive covenants effective for six months following termination. Under the covenants he agreed he would not compete with the employer within a 50- mile radius, that he would not entice away the employer's employes, and that he would not entice or solicit the employer's customers.

On October 15, 1990, the employe and a co-worker met with their supervisor and submitted letters with the heading RESIGNATION LETTER. The employe's letter provided that six months later his contractual requirements with the employer would be satisfied and he would be free of contract restrictions. He also indicated in the letter that for the next six months he would not violate the agreement and that he remained available for continued service, giving the employer the ability "at its option to prepare for my vacancy."

The employe explained he and the co-worker anticipated opening their own contract engineering firm within six months of their notice. He did not set a date of leaving or explain that he wanted to continue working for the employer.

Later that morning the employe received a letter from the employer providing that the business relationship would end on that day and that in accord with the employment agreement, he would be paid his normal salary in lieu of the required 15-day notice.

Prior to the hearing the employer notified the department that they were no longer contesting benefit eligibility and the employer did not appear at the hearing. It was held by the initial determination, the ALJ, and LIRC that the employe quit his employment and benefits were suspended accordingly.

Held: Affirmed. The employe testified to uncontroverted facts which are sufficient to support the commission's finding that the employe quit and was not discharged by the employer as he contends.

The restrictive covenant provision is clear and unambiguous. It is effective for six months following termination. That period runs only after the employment agreement has been terminated. As long as the employment relationship continues, the six-month period does not and cannot begin to run. The purpose of his letter was to have the six-month period start running and his intent in submitting the letter was unequivocal. It is inconsistent for the employe to argue that he did not intend to quit his employment on October 15, 1990, but that the six-month period would commence running. The latter cannot occur without the former.

Warren C. Kamke v. LIRC, DILHR, Worldwide Supply Co. et al., No. 94-CV-4 (Wis. Cir. Ct. Shawano County August 22, 1994)

Employe quit his job in order to provide the same services to his former employer as an "independent contractor." An initial determination held that he was self-employed, and concluded "Benefits are allowed." It did not address the separation issue. Seven months later, after the employe had received substantial benefits, an initial determination was finally issued on the effect of the separation on employe's entitlement, and it was held that he had quit, not within any exception allowing payment of benefits, and was thus ineligible and required to repay the benefits he had received. Employe appealed, arguing that the department was barred by the first determination from finding him ineligible, or at least from requiring repayment of the overpayment. ATD and LIRC affirmed.

Held: Affirmed. There is no question that the department can correct errors which result in payment of benefits which the recipients are not actually entitled to. Waiver of collection of the overpayment is not an alternative until it can be determined that reasonable efforts to recover have failed and the debt is uncollectible under sec. 108.16 (3), Stats.

Warren C. Kamke v. LIRC, DILHR, Worldwide Supply Co. et al., No. 94-CV-136 (Wis. Cir. Ct. Shawano County September 13, 1994)

Employe quit his job to become an "independent contractor." An initial determination (LID) held that he was self-employed, and he received regular UC benefits followed by Emergency UC benefits. Months later an initial determination was finally issued on the effect of the separation on employe's entitlement, and it was held that he had quit, not within any exception allowing payment of benefits, and was thus ineligible and required to repay the benefits he had received. Employe appealed, arguing that the Department was barred by the first determination from finding him ineligible, or at least from requiring repayment of the overpayment. ATD and LIRC affirmed. Employe appealed this decision to court. While this was going on, a separate initial determination was issued which concluded that the standards for waiver of repayment of the EUC were not met because it would not cause extraordinary financial hardship. Employe appealed this decision, and it too was affirmed by ATD and LIRC. Employe then appealed this second decision to court; it was assigned to a different branch in the same county. The summons and complaint recapitulated the allegations concernning the first case, and simply added a reference to the second decision and requested review. LIRC moved to dismiss on the basis that the summons and complaint did not state grounds for review, as required by sec. 102.23 (1)(b), Stats. While the Motion to Dismiss was pending, the court in the other branch dismissed the complaint in the first case on the merits.

Held: Motion to Dismiss granted. Strict compliance with the requirements for judicial review is mandatory. A complaint must expressly state one of the grounds for review described in sec. 102.23, Stats. Particularly because the claim that the first LID was a bar to the second was rejected by the other branch and was thus foreclosed, what remains in the second summons and complaint fails to state any of the grounds for relief recognized by sec. 102.23, Stats.

Joel R. Karlik v. LIRC and Menard, Inc., No. 91-CV-0023 (Wis. Cir. Ct. Waukesha County August 12, 1991)

The petition for commission review was mailed to the commission by certified mail, but the postage attached to the envelope was only adequate to pay for regular first-class mailing. That postage was applied to the envelope by a postal meter in the office of petitioner's attorney. The postal meter showed a date one day prior to the deadline for filing or postmarking. However, the petition was not received by the department until two days following the date of the deadline for postmarking or filing, because it was initially refused by the department since it was tendered by the post office to the department only upon condition of payment of the postage due. After it was refused, it was returned to the office of petitioner's attorney, who then resubmitted it by personal delivery. The envelope in which the petition finally arrived at the department bore the postal meter date which was prior to the deadline, but also bore an official U.S. post office date mark, possibly applied in connection with the return of the postage due letter to the attorney, bearing a date after the deadline. The commission decided to accept the official U.S. post office date mark as the date of "postmark," and thus concluded that the petition was untimely. The petitioner appealed, claiming that the petition for commission review had been "postmarked" prior to the deadline when it was stamped by the postal meter in petitioner's attorney's office prior to the deadline and thereafter deposited in the mail.

Held: Affirmed. There is substantial credible evidence supporting the commission's decision to use the post office postmark date as the date the appeal was mailed. Although materials submitted to the court (but not to the commission) might have explained away the official post office postmark date as having been related to the post office's receipt of the letter after its refusal by the department, the court is limited to reviewing the commission's decision based on the record before the commission, and therefore cannot consider the materials. Moreover, even if the petition for review was in fact placed in the mail prior to the deadline, it was not "postmarked" within the meaning of sec. 108.09 (6)(a), Stats. Since that term must be construed to include a requirement that the petition be posted with adequate postage to insure that it arrives at its destination. Finally, petitioner did not show good cause that the reason for having failed to file the petition timely was beyond the control of the petitioner, since it resulted from an error on the part of a secretary in petitioner's attorney's office in applying the correct amount of postage, and attachment of proper postage was within the control of the secretary.

Linda Beth Karr v. LIRC, DILHR, and A. J. Schwegel, owner a/k/a Anthony J. Schwegel, AJS Enterprises d/b/a Patti Music Company and A. J. Schwegel's Unemployment Insurer, No. 93-CV-4559 (Wis. Cir. Ct. Dane County May 6, 1994)

Plaintiff employe, representing herself, was late filing an appeal from an initial determination holding that she was not able and available for work. She was late because she believed she would be found eligible for worker's compensation. When she learned several weeks after the initial determination appeal period had expired that her doctor's report did not support her worker's compensation claim, she appealed and requested a hearing. She also contended that the determination was in error because she was in fact able and available for work.

Based on the information contained in employe's appeal letter and in her response on the REASONS FOR LATE APPEAL form, the ALJ dismissed her appeal. The dismissal was on the ground that her failure to file a timely appeal was not with probable good cause for a reason beyond her control, within the meaning of sec. 108.09 (4)(e), Stats. and Wis. Admin. Code ILHR 140.04 (1). The commission affirmed.

Held: Affirmed. The sole issue before the commission and the court relates to the employe's untimely appeal. The contents of the initial determination are not before the court. Considering the reasons given by the employe for her late appeal, the court considers that the commission reasonably concluded that her untimely appeal was not for probable good cause for a reason beyond her control.

George Kehres v. LIRC and Harsco Corporation, d/b/a Patent Scaffolding, No. 93-CV- 006880 (Wis. Cir. Ct. Milwaukee County October 19, 1993) 

The employe worked for the employer from 1970 through December, 1992. He was discharged and applied for unemployment benefits. An initial determination by DILHR was mailed to the parties on January 5, 1993. An appeal dated January 18, 1993 was received by the department's Milwaukee South office on January 21, 1993. It had been mailed from Columbus, Ohio, but the envelope did not have a postmark. The last day to appeal or have the appeal postmarked was January 19, 1993.

A department administrative law judge on February 15, 1993 dismissed the appeal for being untimely. The employer petitioned for LIRC review on February 22, 1993. On May 5, 1993, LIRC, dealing solely with the issue of the timeliness of the appeal, found the appeal timely and remanded the case to the department for a hearing on the merits. The basis for the reversal was the commission's interpretation of sec. 108.09 (2r), Stats., that an appeal received by mail without a legible postmark would be treated as having been postmarked on the second working day preceding receipt of the appeal.

Held: The right to judicial review of administrative agency decision is entirely statutory. Sec. 102.23, Wis. Stats., applies to the judicial review of Worker's' compensation decisions as well as unemployment compensation decisions. The only subject available for judicial review is an order or award granting or denying compensation. The commission's order in this case did not grant of deny compensation. It merely reviewed the timeliness decision by the administrative law judge and remanded the case for a hearing on the merits. Therefore the court has no jurisdiction to review the issue of the timeliness of the employer's appeal.

Brian Kilgore v. Jeff Jacobson Performance Foods and LIRC, No. 92-CV-335 (Wis. Cir. Ct. Douglas County March 29, 1993)

The employe worked as a floor maintenance person for a retail grocery for about nine months. He worked the third shift and was to use a scrubbing machine or hand mop the floors before buffing them. On the June 4-5, 1991 shift and on the July 1-2, 1991 shift the employe was observed, on the store's security video camera, to not have used the scrubbing machine before buffing. On the July 30 shift the employe did not use the scrubbing machine. On August 1, 1991, the employe failed to pick up a rug under a water fountain, did not punch out for a break and did some shopping without punching out. The employe had been warned on June 5 and July 2, 1991 about his job performance. On August 6, 1991 he was discharged. The employe contended he did the job to the best of his ability and that he did not use the scrubber because it did not work. The commission concluded that his discharge was for misconduct.

Held: Reversed. Only two incidents of improper floor care before discharge were testified to by the employer and appear in the commission's findings of fact. In the present economic situation that conduct does not meet the misconduct standard established in the Boynton Cab case. It doesn't take into account non-perfect working human beings.



Lisa Kizewski v. Sentry Insurance and LIRC, No. 93-CV-276 (Wis. Cir. Ct. Portage County April 14, 1994) 

The employe worked for the employer, an insurance company, as a records processor for about five years. She started a maternity leave on August 17, 1992 and returned to work on October 19, 1992. She worked that day and the next day and took vacation for the rest of the week. She worked the next Monday through Wednesday and took vacation on Thursday and Friday. She worked part of the following Monday, November 2, 1992 and then left work to see a chiropractor. Subsequently she also saw an orthopedist and another medical doctor who authorized her return to work with restrictions on December 21, 1992. She met with her supervisor and agreed to a work schedule in accordance with the doctor's restrictions. The next day she called the employer and advised that she had seen another chiropractor who excused her from work for another week. The employer advised the employe that unless she returned to work in accord with the guidelines established by the last medical doctor or obtained another excuse from him, she would be considered to have resigned. The employe did not return to work or provide the employer with an excuse. The commission concluded that the employe was not eligible for unemployment benefits because she had voluntarily terminated her employment and not for any exception to that disqualification.

Held: Affirmed. Four medical practitioners had found the employe able to return to work. The employer offered her work within the restrictions established. The employer refused to accept an excuse from yet another chiropractor who excused her from work. The commission's conclusion that the employe's refusal to return to work within the medical restrictions authorized was a voluntary termination of employment is reasonable.

Klein-Dickert Milwaukee, Inc., v. LIRC and Dennis B. Borman, No. 93-CV-007602 (Wis. Cir. Ct. Milwaukee County March 24, 1994) 

The employe worked for the employer as a glazier for about 12 weeks. He last worked during the week ending June 9, 1990. Subsequent to the termination of his employment he applied for and began receiving worker's compensation benefits. During calendar year 1991 the employe did not perform work for the plaintiff or for any other employer. He received worker's compensation benefits for that period. The worker's compensation benefits to the employe ended in April, 1992. He applied for unemployment compensation benefits on April 20, 1992.The department issued an initial determination calculating the wages paid during the base period (calendar 1991) as the amount of the wages that the employe would have earned except for his disability, pursuant to sec. 108.02 (4m), Stats. Benefits were then paid based on that calculated wage. The employer objected to any benefit calculation in excess of the number of weeks of wages that the employe actually worked for the employer.

Held: Affirmed. The plaintiff's objection to the payment of unemployment benefits to the employe is based on its assertion that the worker's compensation benefits paid to him were paid in error. The plaintiff contends that the worker's compensation was paid due to a mistake of fact and that the employe's injuries were not work related but were caused by diabetes. However, the medical report submitted by the plaintiff was not certified or verified. It is, at best, hearsay. The plaintiff has not shown the applicability of any hearsay exception and the report therefore can not support a finding. Additionally, though plaintiff argues that the medical report was disregarded, no authority for that proposition is cited. The report may have been considered and found not credible. Credibility determinations are for the commission, not the courts. Additionally, the validity of worker's compensation payments cannot be challenged in an unemployment compensation proceeding. It is undisputed that the employe received worker's compensation payments and no proceedings had been instituted to recover those payments. There is sufficient credible and substantial evidence in the record to support the commission's decision.

William J. Koch v. Enforcements Section, Attorney Michael J. Mathis, Bureau of Legal Affairs and LIRC, No. 93-CV-1411 (Wis. Cir. Ct. Waukesha County June 28, 1993) (Bench decision).

The department issued an initial determination holding that the plaintiff was personally liable for specified unemployment tax delinquencies originally incurred by a corporation with respect to which the plaintiff had been the president and majority shareholder. The plaintiff appealed the department's initial determination.

An appeal tribunal held that the plaintiff was personally liable for certain of the tax liabilities specified in the department's initial determination but not personally liable with respect to certain other specified liabilities. The plaintiff petitioned that portion of the appeal tribunal decision which was adverse to him to the commission.

The commission affirmed the appeal tribunal decision in its entirety. The plaintiff then commenced an action for judicial review of the commission decision.

Following service of the summons and complaint a motion to dismiss was made by the defendants department and commission. The basis for the motion to dismiss was that the plaintiff had failed to specify any of the grounds for reversal of a commission decision as specified at sec. 102.23 (1)(e), Stats.

Held: Motion to dismiss granted.

The plaintiff's failure to have enumerated any of the grounds for reversal of a commission decision as specified at sec. 102.23 (1)(e), Stats., constituted a fatal defect with respect to the plaintiff's review action. The defect deprived the court of UC Digest jurisdiction.

Therefore, the circuit court is without jurisdiction to consider the plaintiff's complaint on the merits. As 30 days have elapsed from the date of the commission decision plaintiff will not be allowed to amend his complaint.

Leonard Krantz v. LIRC, DILHR and Maria L. Weathersby, No. 91-CV-1776 (Wis. Cir. Ct. Waukesha County June 24, 1992)

Quality Transportation Consultants was incorporated in 1983 with plaintiff putting up most of the capital and being president of the corporation. However, he was only a 49 percent shareholder with Maria Weathersby being a 51 percent shareholder. This was done to take advantage of her female and racial minority status. Krantz's obligations were primarily outside the office in terms of sales and outside contact for the business. By mutual agreement, Weathersby was in charge of internal day-to-day operations, including paying bills and taxes.

From the start, the business was not successful and did not meet many of its obligations, including the payment of unemployment compensation taxes. Plaintiff was aware the corporation was having trouble meeting its obligations because of contacts he had with some of the corporation's creditors.

Beginning in June 1985, DILHR began sending collection letters and dunning notices as well as initial determinations of unpaid unemployment compensation liability to Quality. While Krantz may have never seen these notices, there was evidence he discussed these notices with Weathersby. Furthermore, a note on an unemployment compensation division printout relevant to the tax delinquency of Quality indicated a collection specialist had discussed the problem with Krantz so that at the very least he knew of the unpaid taxes. This specialist had died by the time of the hearing on the appeal.

In 1987, Krantz left the corporation pursuant to a buy out arrangement whereby the corporation would pay to repurchase his corporate stock. Shortly thereafter, the corporation ceased to operate entirely.

The department issued initial determinations of personal liability both to Weathersby and Krantz. Weathersby did not appeal, but Krantz did. Krantz contended that he was not responsible for the filing of contribution reports and making payments nor did he have any supervision or control over those matters. He further contended that the failure to pay was not wilful. The appeal tribunal affirmed the initial determination based primarily on his knowledge of the unpaid taxes, his check signing authority, and his fiduciary duty as an officer of the corporation. Krantz then petitioned LIRC for review. LIRC affirmed making note of the fact that Krantz was aware of the financial condition of the corporation and of the status of the unpaid unemployment compensation contributions. Therefore, as an officer of the corporation he had responsibility for seeing to their payment.

Krantz commenced an action for judicial review of the Labor and Industry Review Commission decision. He contended in court that the note of the deceased collection specialist was inadmissible hearsay. He also made the contentions he made before the Labor and Industry Review Commission.

Held: Affirmed. The court is required to give deference to the findings of fact of the LIRC and affirm them if credible and substantial evidence exists to support those findings. Furthermore, one who occupied a position of authority could not avoid personal liability by disregarding the obligation to pay the U.C. tax or by delegating that responsibility. Krantz was aware of the unpaid taxes based on the note from the specialist and testimony of Weathersby. Therefore, he was responsible and the failure to pay was wilful.

Concerning the admissibility of the note of the deceased specialist, the court finds there was other corroborating evidence of Krantz's knowledge. While the note was hearsay, it was admissible as a record of a regularly conducted activity and as a public record or report and there was evidence in the record of other circumstances of trustworthiness that would permit the admission of the note under the catchall exception to the rule in sec. 908.03 (24), Stats.

Based on all of this, the court concludes there is substantial evidence supporting LIRC's findings and conclusions.


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Joseph Lehner v. Bolden Bros. Construction, John C. Bolden, and LIRC, No. 93-CV-215 (Wis. Cir. Ct. Monroe County June 21, 1994) 

The employe worked as a laborer for the employer, a masonry construction company where he had worked periodically since 1988. In December, 1990 the employe graduated from the UW- La Crosse. He did not attend school the following semester. He reenrolled at UW-La Crosse in September 1991 and attended both semesters of that school year. During the second semester of that year he carried a full load and did not work. After the second semester ended in May 1992 the employe returned to work for the employer. He worked through October 2, 1992 when he was laid off. He applied for unemployment benefits. The commission, reversing a decision of an administrative law judge, held that the work performed by the employe in May and June 1992 was performed during the customary vacation period of the educational institution he had attended in the preceding term within the meaning of sec. 108.02 (15)(k)13., Stats., and therefore was not employment. The employe contended that the exception did not apply since he had graduated from that educational institution.

Held: The statute provides that in order to consider work done during a vacation period as employment, the vacation period must be the one following the graduation. That is not the case here. Therefore the employe's work during that vacation period is not employment. The commission's decision is affirmed.

No deference is given to the commission's decision since there is no indication that the commission has ruled in this fashion since the statute was enacted.

Thelma D. Listenbee v. LIRC, DILHR & Parker Pen USA Ltd, No. 93-CV-170 (Wis. Cir. Ct. Rock County August 11, 1993)

The employe had worked for the employer as a pen assembler for about one year. On her last day of work the employe fought with another employe in the employer's parking lot after the work shift ended. The commission, reversing the decision of an administrative law judge, found the employe guilty of misconduct. The employe initiated a judicial review action. The court set a briefing schedule. The employe did not file a brief. She alleged confusion and a new schedule was established. Again the employe did not file a brief.

Held: Since the employe did not comply with the briefing schedule and failed to show any basis for changing the commission's decision, the matter is dismissed.

Naim K. Lodhi v. LIRC & DILHR, UC Division, No. 93-CV-005478 (Wis. Cir. Ct. Milwaukee County June 28, 1993) (Bench decision) 

Plaintiff (claimant) was paid benefits based on employment with two base-period employers plus he was paid Federal Emergency Unemployment Compensation benefits. Issues arose as to whether claimant was employed by and whether claimant quit American Total Security, Inc. (American) during his benefit year.

Initial determinations, appeal tribunal decisions and commission decisions were issued to claimant and to American, which had appeared at the U.C. hearing. Claimant commenced an action for judicial review but failed to name American as a party defendant. LIRC brought a motion to dismiss on the ground that claimant failed to name American as a party defendant.

Section 102.23 (1)(a), Stats., requires that the adverse party must also be made a party defendant. The LIRC administrative code provisions and the enclosure relating to appeal rights provides that the party in whose favor decision was made must also be made a defendant. Claimant argued that because American's U.C. account was only potentially liable for benefits as a potential base-period employer, it was not required that American be name as a party defendant.

Held: Motion to dismiss granted.

(Affirmed in unpublished per curiam decision in case No. 93-2274 dated September 7, 1994, 188 Wis. 2d 80 (Ct. App. 1994), petition to review denied ____ Wis. 2d ___ (1994).

Sylvia M. Lubow v. LIRC, No. 91-CV-427 (Wis. Cir. Ct. Washington County January 30, 1992)

Claimant's work as a secretary for a private accounting service ended in 1989. She subsequently applied for unemployment benefits in the week ending May 20, 1989 (week 20). She claimed and received benefits in the amount of $158 for that week and each subsequent week through week 35 of 1989. On the claim cards she filed for each of those weeks the claimant stated that she had looked for work in that week.

When she applied for benefits the claimant was instructed to complete a work search by applying with or reasonably contacting one employer in each week for which she claimed benefits. Each weekly claim card instructed her to file her claim in person if she answered the work search question in the negative.

In response to an objection by claimant's former employer that she was not looking for work, an eligibility review interview was scheduled. Claimant failed to appear and failed to respond to two subsequent requests for information. A disqualification determination was issued which became final after the appeal period expired.

Subsequently, a forfeiture determination was issued in the amount of two times the benefit overpayment. Claimant appealed that determination which was affirmed by an ALJ and LIRC.

Held: Reversed. Imposition of a forfeiture requires proof of a statutory violation. The burden of proof is on the agency. Under the facts here the claimant's failure to appear or provide information amounts to a concession that she did not seek work and was therefore not eligible for benefits. However, a conclusion of fraud requires more than a lack of cooperation. The claimant's testimony that she did seek work can be discounted, but this record is inadequate to support a finding of fraud.

(The court was unwilling to allow a finding of fraud without some positive evidence. The court noted that the former employer who brought this charge to the department's attention was not called to testify. Thus courts may be unwilling to approve a fraud conclusion when evidence of same is available but is not used.)

Virginia R. Ludvik v. AIDA Services Inc., Task Force Division and LIRC, No. 91-CV-4567 (Wis. Cir. Ct. Dane County February 25, 1992)

The plaintiff-employe timely filed and served a summons and complaint. The complaint, however, merely indicated she was filing a complaint against the commission and that she wanted judicial review of their decision setting forth sec. 102.23 (1)(a), Stats.

Held: The commission's motion to dismiss for failure to set forth a cause of action as required by sec. 102.23 (1)(b), Stats., is granted.

Luetzow Industries v. LIRC and Gregory K. O'Leary, No. 94-CV-000406 (Wis. Cir. Ct. Milwaukee County August 9, 1994) (Bench decision)

The employe's last day of work was on Wednesday, June 23, 1993. On June 24 he notified one of the employer's partners that he was unable to work due to his back and that he would see a doctor. He was seen by his doctor, instructed not to return to work, and to see the doctor again on Monday, June 28. A medical report from his doctor was submitted to the employer. He was released to return to work on Thursday, July 1. He advised the employer that he had been released to return to work and read the doctor's release to the partner. Not one of the eleven potential limitations were checked by the doctor. He was advised by the partner that he had to obtain a statement from the doctor before he could return to work stating that his return to work would not cause any further risk of injury to his back.

The employe agreed to obtain such a statement but learned that his doctor was on vacation, that a nurse could not complete such a report, and that he would have to see another doctor at additional expense. He did not have sufficient funds to see another doctor but reported for work on July 6. He was not permitted to work without the required medical report.

The ALJ held the employe did not quit as contended by the employer in that his actions were not inconsistent with the employment relationship. The employer contended in the alternative that the employe was discharged for misconduct for excessive absenteeism, for failure to set forth prior back injuries on his employment application, or for failure to obtain the required medical report. The ALJ held that the reason for discharge was he did not have a medical report acceptable to the employer. The ALJ also held that the medical report should have been adequate for the employer and that the employe's good-faith effort to obtain another medical report was not a wilful or intentional disregard of the employer's interests required to establish misconduct.

The commission adopted the ALJ's findings of fact and conclusions of law as its own. The commission pointed out in its MEMORANDUM OPINION that it was unclear that the medical assurances required by the employer could ever be given.

Held: Affirmed.

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