Donna M. Lantieri v. Administrator, Unemployment Compensation Act et al. (2011)

MEMORANDUM OF DECISION RE:  CLAIMANT'S APPEAL FROM DECISION OF THE BOARD OF REVIEW DENYING UNEMPLOYMENT COMPENSATION TO THE CLAIMANT

The issue raised in this appeal is whether the employer Ocean State Job Lot of Meriden discharged the claimant Donna M. Lantieri for willful misconduct in the course of her employment, and, if so, what did said willful misconduct consist of on the part of the claimant?

Section 31–236(a)(1)(B) of the Connecticut General Statutes provides that an individual is ineligible for unemployment compensation benefits if he or she were discharged or suspended for willful, misconduct in the course of his or her employment.   The individual will remain ineligible until she earned at least ten times her benefit rate.  Section 31–236(a)(16) of the general statutes provides further that in the case of discharge resulting from an absence from work, willful misconduct means:  1) deliberate misconduct in willful disregard of the employer's interest, or 2) a single knowing violation of an employer's reasonable and uniformly enforced rule or policy.

The Connecticut Supreme Court has defined “willful misconduct” as “intentional conduct with the design to injure either actually entertained or to be implied from the conduct and circumstances, and the resulting injury, also, must be intentional.”  Dubay v. Irish, 207 Conn. 518, 533 (1988).

Where an individual has been discharged from her job, the law should not be applied in such a manner as to deny benefits to the individual unless the evidence clearly establishes that the discharge was for willful misconduct within the meaning of the Unemployment Compensation Act. Harrison v. Kimberly Clark Corp., Board Case No. 2991–82–BR (2/10/83).   Therefore, although an employer may have sufficient justification for discharging an employee, that justification is not always grounds for denying unemployment benefits.   Wiggins v. Ideal Security Systems, Inc., Board Case No. 584–BR–88 (7/20/88).

The claimant sustained a fracture of the right olecranon (elbow) as a result of a fall on May 30, 2009.   On said date she was examined in the emergency room at Waterbury Hospital which referred her to Robert S. Wetstone M.D. who on June 11, 2009 operated on said fracture which was displaced.   The surgery consisted of the placing of pins and wiring to align the fracture fragments followed by casting to maintain proper positioning of said fragments.   The claimant initially requested a leave of absence beginning on June 1, 2009.   She is accused of ignoring multiple requests from her employee that she supply adequate medical certification to support her need for medical leave of absence.   The record does not bare this out, unless the many calls, one fax and several attempts by claimant to secure her records by visiting the doctor's office are ignored.   See p.13 entitled Fact Finding Report Claimant Statement.   Page 16 entitled Findings of Fact discloses that the FMLA medical certification was originally due by 7/7/09 and was not submitted by claimant by 7/7/09.   The employer extended the deadline to 8/10/09.   The claimant failed to submit said FMLA medical certification by 8/10/09, and was discharged from her employment on that date.

The reason for Claimant's failures was because unknown to her Dr. Wetstone's office had lost the forms which had dutifully been submitted to the office by the Claimant.   The fact that the forms had been misplaced at the doctor's office was conveyed by claimant to her employer and verified by Dr. Wetstone, page 12 of the record, which was received on September 22, 2009 and stamped “Labor Department Middletown Adjudication.”   This page bears the heading of Waterbury Hospital Henry S. Chase Out Patient Center and is dated 9/20/09 and reads:

Olecranon fracture ORIE (tension Band Wiring) 6/11/09 patient was followed in Chase Orthopedic Clinic—when seen 7/09 paper work was filled out—But lost @ our clinic—stating that she was disabled and unable to work I confirm that this was the case.   Patient was disabled due to her fracture from 6/11/09 until she was cleared to returned to work 9/3/09.

Subsequent paperwork filled out 9/4/09 (when pt. not seen) referred back to when she was disabled.   I have examined patient today and confirm that she is able to work (as if 9/3/09)

Robert S. Wetstone, M.D.

According to the claimant, on one of her calls she had been informed by the doctor's office that Dr. Wetstone was on vacation and out of the office for an extended period following her surgery which was another reason why he could not have furnished the necessary paper work in a timely manner.   The court certainly is not critical of Dr. Wetstone for taking a vacation, but, it appears to the court that everything that accounted for the delay in securing the information required, was not of the claimant's making, but rather of unexpected happenings that made compliance with the deadline sought by the employer impossible for the claimant to meet.   Nor, does the court feel that a finding of willful misconduct on the part of the claimant is justified on a finding that the claimant could or should have made more calls to the Doctor's office or more visits to the Doctor's office than were made by her, and that if said calls or visits had been made, claimant could have provided said forms earlier in conformity with deadlines.

The court can find no evidence that would justify a finding of willful misconduct on the part of the claimant.   As a result the claimant is not disqualified from receiving unemployment compensation benefits pursuant to General Statutes § 31–236(a)(2)(B).

The appeals referee reversed the decision of the administrator.   This court reverses the decision of the Board of Review and affirms the decision of the appeals referee.   The claimant is awarded full benefits from the date of her discharge from her employment on August 9, 2009, and said benefits should continue so long as authorized by appropriate statutes.

Skolnick, J.T.R.

Skolnick, David W., J.T.R.