Administrative Register effective March 15, and decisions
The Revisor of Statutes Bureau has issued the first/second half of No. 615 [22 pp. pdf].
Administrative decisions posted online since March 1, 2007
Labor and Industry Review Commssion
> Equal Rights Decisions:
Fink v. Sears Roebuck & Co. Conviction record discrimination - sexual assault of a child / asst. manager in auto repair shop; Hoell "mixed motive" case: discharge based in part on employer's belief that employee provided misleading information about circumstances of conviction, and in part because of that conviction, but employer would have fired him even absent the misleading information; this offense not "substantially related" to this job - cease/desist order, atty's fees
> Unemployment Insurance Decisions:
Crum v. Kelly Services, Inc. Failure to provide correct/complete info during investigation - s. 108.04(13)( g ) - employee was at fault for initially not disclosing work with/discharge by this employer
Zingale v. Liftco Domestic and Personal Circumstances, VL 1033 - Move from locality employee moved to another county to take job, then had to quit it when his probation could not be transferred and he was required by terms of his probation to return to previous residence - a quit, not for good cause attributable to employer - BR 335.01 - Waiver granted - 'department error' - misapplication of law - ALJ decision allowing benefits under § 108.07(8)(b), concerning charging of benefits for state prisoners, was department error
Hansen v. Great Lakes Water, Inc. Wages - Failure or refusal to pay - employer knew there was insufficient money in account to cover paycheck but hoped (in vain) there would be when check was cashed, - employee did not need to inform employer she was quitting due to NSF paychecks because employer was aware her checks were bouncing; employer failed to file quarterly UI reports, made no effort to transfer duites to anyone else or seek help - not necessary for employee to complain prior to quitting, employer knew what it was doing
Hartman v. Wauwatosa Day Care & Learning Centers, Inc. Absence, tardiness without notice - s. 108.04(5g) not applicable where policy's notice of possible discharge only related to absences, not tardies; MC 605.09 - Absence, Reason, General - 9 tardies, but record improving, significant mitigating factors as to several, most tardies were of only a few minutes - no misconduct
Blunt v. Madison Metropolitan School District Leave under Family Medical Leave Act -- after 12 weeks, employee's entitlement to leave was "exhausted" so ineligibility provided for by §108.04(1)(b)3. ends, issue becomes general A&A; Health - physical condition - employee, on doctors advice, was refusing all work, not A&A
Schroeder v. Paper Transport of Green Bay, Inc. Insubordination, Disobedience - employee refused assignment to drive different truck than the one he usually drove - his objections, that his CDL and log were in other truck so he could not drive legally, rejected - discharge for misconduct
Bahr v. Hometown, Inc. Absence, Notice - employee had three no-call-no-shows, followed by an unexcused absence - employee's attendance improved after final warning and his last absence was for valid reasons and with notice - no misconduct; other attendance decisions distinguished; Absence, tardiness without notice - s. 108.04(5g) not applicable, fewer than 5 absences w/o notice
> Workers Compensation Decisions:
Stuhr v. Dairyland Power Cooperative Permanent Partial Disability, Non-Schedule Injury, Proof Necessary - weight of evidence establishes pseudoarthrosis, permanent functional disability - injured workers not required to undergo back surgery if they choose not to but the reasonableness of such choice is a factor to be considered in assessing LOEC - applicant here needs further surgery, can't have it until he loses weight, is able to do so, after a reasonable period of time, should he fail to lose the weight necessary to allow surgery, LOEC assessment will be required
Kaap v. County of Milwaukee Schedule Injury - applicant's computer work was a least a material, contributory causative factor in onset / progression of carpal tunnel syndrome - opposing opinion, that computer work in absence of forceful grasping has not been shown to have been causative of carpal tunnel syndrome, not credible
Henry v. General Motors Corporation Bad faith and Delay in Payment - employer never denied work-relatedness, had no medical evidence, relied upon claims adjuster's analysis, which was not competent medical opinion and subsequently proven incorrect - full 200 % penalty appropriate
Jerome v. Jackson Schedule Injury - separate injuries to wrist, elbow, fingers/thumb - separately addressing each of the scheduled disabilities sustained at the wrist, elbow, and fingers/thumb, was appropriate
Administrative decisions posted online since March 1, 2007
Labor and Industry Review Commssion
> Equal Rights Decisions:
Fink v. Sears Roebuck & Co. Conviction record discrimination - sexual assault of a child / asst. manager in auto repair shop; Hoell "mixed motive" case: discharge based in part on employer's belief that employee provided misleading information about circumstances of conviction, and in part because of that conviction, but employer would have fired him even absent the misleading information; this offense not "substantially related" to this job - cease/desist order, atty's fees
> Unemployment Insurance Decisions:
Crum v. Kelly Services, Inc. Failure to provide correct/complete info during investigation - s. 108.04(13)( g ) - employee was at fault for initially not disclosing work with/discharge by this employer
Zingale v. Liftco Domestic and Personal Circumstances, VL 1033 - Move from locality employee moved to another county to take job, then had to quit it when his probation could not be transferred and he was required by terms of his probation to return to previous residence - a quit, not for good cause attributable to employer - BR 335.01 - Waiver granted - 'department error' - misapplication of law - ALJ decision allowing benefits under § 108.07(8)(b), concerning charging of benefits for state prisoners, was department error
Hansen v. Great Lakes Water, Inc. Wages - Failure or refusal to pay - employer knew there was insufficient money in account to cover paycheck but hoped (in vain) there would be when check was cashed, - employee did not need to inform employer she was quitting due to NSF paychecks because employer was aware her checks were bouncing; employer failed to file quarterly UI reports, made no effort to transfer duites to anyone else or seek help - not necessary for employee to complain prior to quitting, employer knew what it was doing
Hartman v. Wauwatosa Day Care & Learning Centers, Inc. Absence, tardiness without notice - s. 108.04(5g) not applicable where policy's notice of possible discharge only related to absences, not tardies; MC 605.09 - Absence, Reason, General - 9 tardies, but record improving, significant mitigating factors as to several, most tardies were of only a few minutes - no misconduct
Blunt v. Madison Metropolitan School District Leave under Family Medical Leave Act -- after 12 weeks, employee's entitlement to leave was "exhausted" so ineligibility provided for by §108.04(1)(b)3. ends, issue becomes general A&A; Health - physical condition - employee, on doctors advice, was refusing all work, not A&A
Schroeder v. Paper Transport of Green Bay, Inc. Insubordination, Disobedience - employee refused assignment to drive different truck than the one he usually drove - his objections, that his CDL and log were in other truck so he could not drive legally, rejected - discharge for misconduct
Bahr v. Hometown, Inc. Absence, Notice - employee had three no-call-no-shows, followed by an unexcused absence - employee's attendance improved after final warning and his last absence was for valid reasons and with notice - no misconduct; other attendance decisions distinguished; Absence, tardiness without notice - s. 108.04(5g) not applicable, fewer than 5 absences w/o notice
> Workers Compensation Decisions:
Stuhr v. Dairyland Power Cooperative Permanent Partial Disability, Non-Schedule Injury, Proof Necessary - weight of evidence establishes pseudoarthrosis, permanent functional disability - injured workers not required to undergo back surgery if they choose not to but the reasonableness of such choice is a factor to be considered in assessing LOEC - applicant here needs further surgery, can't have it until he loses weight, is able to do so, after a reasonable period of time, should he fail to lose the weight necessary to allow surgery, LOEC assessment will be required
Kaap v. County of Milwaukee Schedule Injury - applicant's computer work was a least a material, contributory causative factor in onset / progression of carpal tunnel syndrome - opposing opinion, that computer work in absence of forceful grasping has not been shown to have been causative of carpal tunnel syndrome, not credible
Henry v. General Motors Corporation Bad faith and Delay in Payment - employer never denied work-relatedness, had no medical evidence, relied upon claims adjuster's analysis, which was not competent medical opinion and subsequently proven incorrect - full 200 % penalty appropriate
Jerome v. Jackson Schedule Injury - separate injuries to wrist, elbow, fingers/thumb - separately addressing each of the scheduled disabilities sustained at the wrist, elbow, and fingers/thumb, was appropriate
posted by Terrence Berres at 9:45 AM
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