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

Subject: James J. McCann (Hrg. No. 96005436MD) v. LIRC and Innovative Staffsearch, Inc., Case 97-CV-0613 (Wis. Cir. Ct., Dane Co., September 15, 1997)

Digest Codes:  MC 653.2   PC 714.10

The employe worked for about seven months as a manager and placement specialist for the employer, an executive placement agency. In early 1996, the employe informed the principal owner of the business that he was having trouble with the use of crack cocaine. He was given time off in the late spring to seek treatment for his drug addiction, and then returned to work in July of 1996. At that point, he was told that if he relapsed and again began using cocaine, his position would be jeopardized. On August 5, 1996, the employe again used cocaine and as a result did not report to work the following day. The employer thereupon discharged him.

The commission found misconduct, primarily relying on a Certified Medical Report (UCB-474) completed by the employe’s physician, in which the physician checked "yes" to the question of whether the employe could abstain from the use of the drug.

The employe appealed to circuit court and argued that his addiction made his relapse unintentional.

Held: The commission’s decision is affirmed. The physician’s opinion demonstrated that the employe’s ingestion of cocaine was volitional.

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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