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

Subject: Ashley Furniture Industries  v. LIRC and David A. Franzwa,  Case No. 08 CV 55 (Wis. Cir. Ct., Pepin Co., February 23, 2009)

Digest Codes: MC 630.09  PC 733

The employee took a leave of absence, submitting information from his doctor that he had pneumonia in one lung and needed to be off work.  During the 2 weeks he was on leave, the employee on numerous occasions drove  to a casino 1 hour from his home. After the employer discovered this it discharged him.  The Department determination found the discharge was for misconduct and an Appeal Tribunal affirmed. 

LIRC's decision on appeal reversed and found no misconduct, reasoning that the employer did not show that the employee's visits to the casino equated to the same type of activity that he would have done had he reported to work. The employee's doctor provided him with a note that indicated that his visits to the casino did not negatively affect his health condition.  The employee was legitimately ill and there was nothing in the record to support any conclusion that he falsified his request for time off so that he could go to the casino and gamble instead.

Held:  Affirmed.  LIRC's interpretation and application of the 'misconduct' standard is entitled to 'great weight' deference. LIRC's conclusions that the employee was legitimately ill and that the casino visits did not negatively affect his health condition are supported by the record.  LIRC has a rational basis for rejecting the employer's argument that if the employee was too sick to go to work he was too sick to go to a casino; there was no medical substantiation of that argument.

Regarding the fact that the commission did not consult with the ALJ before reversing, the Court reasoned that the commission made substantially similar findings to those of the ALJ, but drew different legal conclusions from them.  This does not trigger the special requirements of consultation of record with the examiner and separate explanation by the commission of the basis for its disagreement.  The commission's decision cannot be overturned on due process grounds.

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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