12. Misconduct

Gallagher v Montcalm County – 12.153

Gallagher v Montcalm County
Digest no. 12.153

Section 29(1)(b)

Cite as: Gallagher v Montcalm Co, unpublished opinion of the Court of Appeals, issued August 17, 1999 (Docket No. 203429).

Appeal pending: No
Claimant: Dale Gallagher
Employer: Montcalm County
Docket no.: 96-000348-AE
Date of decision: August 17, 1999

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COURT OF APPEALS HOLDING: A claimant’s indirect and belated efforts to notify his employer of his absences and failure to contact his employer thereafter, when occurring immediately following other disciplinary action, may constitute disqualifying misconduct.

FACTS: Claimant was employed as a building inspector for Employer. On December 3, 1993, Claimant received a 3-day suspension for falsification of time cards, failure to return to work after breaks, and other things. On his first day back after this suspension, Claimant suffered from a spasmodic colon causing him to defecate uncontrollably while on his way to work. After cleaning himself, he stopped into work only briefly before leaving without communicating with anyone. Claimant’s daughter-in-law contacted his supervisor on December 9 about Claimant’s illness, and Claimant mailed in his time card on December 10 with the word “sick” written on it. Claimant never personally contacted his supervisor regarding his absence; Claimant did not provide medical verification, nor did his doctor ever tell him that he could not return to work. Claimant was sent a letter on December 17 informing him that his failure to return to work, make personal contact, or provide written clarification of his absence is considered voluntary termination of his employment.

On appeal of Claimant’s initial determination of eligibility, the ALJ determined that failure to keep Employer adequately informed as to why he was absent constituted disqualifying misconduct. The Board of Review affirmed the ALJ decision on different grounds, finding misconduct instead in failure for Claimant to provide medical verification of the reason for his absence. On appeal, the Circuit Court disagreed with the Board of Review’s reasoning, but affirmed the decision as not contrary to law, agreeing with the ALJ that misconduct stemmed from Claimant’s failure to keep the employer adequately informed as to the reason for his absence.

DECISION: The Circuit Court decision is affirmed, Claimant is disqualified from benefits due to misconduct.

RATIONALE: Generally, tardiness or absence which results from circumstances outside the claimant’s control cannot be considered to be misconduct, which is willful or wanton disregard of the employer’s interest. However, here, the evidence shows that Claimant’s doctor did not tell him that he could not return to work. Also, when Claimant stopped at Employer’s building the same day of his medical condition, he did not bother to appraise anyone of his situation or leave any form of communication, nor did he personally contact Employer that day or any day subsequent. “An employer . . . has a right to expect that its employees will provide appropriate notification of their reasons for an absence from work. Coming on the heels of a three-day disciplinary suspension,” Claimant’s actions constitute an intentional and substantial disregard for his employer’s interests. The Circuit Court did not clearly err by affirming the Board of Review’s decision.

Digest Author: Jack Battaglia
Digest Updated: 8/14

09. Preservation of Credit Weeks

Michigan Overhead Door Sales & Service, Inc v Gowen – 9.03

Michigan Overhead Door Sales & Service, Inc v Gowen
Digest no. 9.03

Section 28a

Cite as: Michigan Overhead Door Sales and Service, Inc v Gowen, unpublished opinion of the Wayne County Circuit Court, issued November 8, 1984 (Docket No. 84-419470-AE).

Appeal pending: No
Claimant: Charles Gowen
Employer: Michigan Overhead Door Sales and Service, Inc.
Docket no.: B83 04091 89560
Date of decision: November 8, 1984

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CIRCUIT COURT HOLDING: The clear language of the statute requires that one disabled file with the Commission within 45 days of the commencement of the disability except when a medical inability exists.

FACTS: The claimant last worked on July 1, 1981, when he incurred work related injuries. He was hospitalized for 12 days thereafter and received Worker’s Compensation benefits until November 22, 1982. On January 6, 1983, exactly 45 days after he received his last Worker’s Compensation payment, claimant filed for preservation of credit weeks. On that date, he was given a physician’s statement, which was subsequently signed by his physician on January 10, 1983 and returned to the Commission on January 14, 1983. The statement indicated that the claimant’s disability was terminated on September 20, 1982.

DECISION: The claimant is ineligible to preserve his credit weeks.

RATIONALE: The use of the word inability, instead of disability, is important to an understanding of the statute. Inability means unable to file the application and submit the physician’s statement, due to the medical disability. The claimant’s 12 day hospitalization was clearly a medical inability. While the medical disability continued at least until September 20, 1982, at which time the claimant’s physician released him to return to work, there is no evidence of a medical inability to comply with the statute.

The record clearly shows that following the claimant’s hospitalization, he visited his physician and looked for work. “It must be concluded that a patient who visits his physician while disabled, and seeks employment, is medically able to comply with the M.E.S.C. requirements of making written application and submitting a physician’s statement within the time limits set by statute.”

Digest Author: Board of Review (original digest here)
Digest Updated: 6/91