DATED AND FILED
NOTICE
December 30, 1997
Marilyn L. Graves
Clerk, Court of Appeals
of Wisconsin
No. 96-1105
DISTRICT I
Rick G. Larson,
Plaintiff-Appellant,
v.
Labor and Industry Review Commission and
Clean Power, Inc.,
Defendants-Respondents.
APPEAL from an order of the circuit court for Milwaukee County:
ARLENE D. CONNORS, Judge. Affirmed.
Before Wedemeyer, P.J., Fine and Schudson, JJ.
WEDEMEYER, P.J. Rick G. Larson appeals pro se from a circuit
court
order denying reversal of a decision denying him unemployment compensation. He
contends that the Labor & Industry Review Commission (LIRC) should have upheld
the hearing examiner's decision that he had good cause for terminating his employment
with Clean Power, Inc. We affirm the order.
Larson was hired by Clean Power as a maintenance mechanic. On
occasion, he was assigned to cleaning projects. In December 1994, he was disciplined
for insubordination when he refused to work on a cleanup involving blood. At the
unemployment compensation hearing, Larson testified that he objected to cleaning
blood because it was disgusting and because the possibility that it contained blood-borne
pathogens made it dangerous. Larson noted that he frequently had scrapes, cuts, and
nicks on his hands from working on equipment. He was, however, willing to accept the
increased risk presented by blood cleanup if he received additional compensation.
When a paycheck did not include an expected pay increase for doing so, he confronted
management. He was told he was expected to cleanup blood without additional
compensation. Larson terminated his employment.
Generally, an employee who voluntarily terminates employment is not
eligible for unemployment benefits. Section 108.04(7)(a), Stats. An exception exists
if the employee does so for "good cause" attributable to the employer,
§ 108.04(7)(b).
This requires some fault by the employer that is real and substantial. See
Nottelson v.
DILHR, 94 Wis.2d 106, 120, 287 N.W.2d 763, 770 (1980).
The hearing examiner concluded that Larson quit his employment for
good cause. The examiner found a material breach of the employment contract because
Larson was hired to do maintenance and repairs and the additional risks associated with
the cleanup of blood-borne pathogens presented a significant change in the conditions
of employment.
Clean Power appealed to LIRC, which reversed the examiner's decision.
LIRC concluded that Larson did not have good cause for terminating his employment
because he had previously cleaned buildings, he "received training for the cleanup of
blood[-]borne pathogens," and Clean Power provided protective devices to protect
employees from infectious diseases.(1) Further,
Larson's personal revulsion to cleaning
up blood was not a sufficient reason for refusing an assigned duty. The trial court
affirmed LIRC's decision denying benefits.
In reviewing a circuit court's order affecting an administrative agency's
decision, this court's scope of review is identical to the circuit court's. See
Hubert v.
LIRC, 186 Wis.2d 590, 596, 522 N.W.2d 512, 514 (Ct. App. 1994).
Our review is of
LIRC's order, not the circuit court's decision. Id.
The hearing examiner and LIRC disagreed over whether the expectation
that Larson would occasionally cleanup blood was a change of conditions in
employment. Both, however, concluded that he had received training and was provided
protective equipment to alleviate the risk from contaminated blood. In his appellate
brief, Larson challenges this finding, and he argues that the training was inadequate.
Larson's brief provides a lengthy description of the training; however,
this description was not presented at the administrative hearing. We are precluded from
considering information not contained in the record. See Jenkins v.
Sabourin, 104
Wis.2d 309, 313, 311 N.W.2d 600, 603 (1981). Thus, we consider only the testimony
before the hearing examiner.
Clean Power's witness testified at the hearing that Larson was trained on
building cleanup within a week of being hired and that he was later trained to cleanup
blood. In response to the examiner's question about the nature of the training, the
witness asserted that Larson was completely trained on the contents and use of the
protective kit and on how to handle potentially infectious materials. Larson testified
that, like other employees, he had received training regarding blood-borne pathogens;
however, he believed the purpose was to limit the company's liability. He testified that
the training included the procedures for marking and covering blood until a manager or
supervisor could handle it. Larson did not answer the examiner's direct question of
whether the training included use of safety equipment and removal of blood. Instead,
he answered, "Well, basically never having done it[,] it was not very fresh in my mind.
And never even -- never considering that I would have -- have to go and do it. It was
not real sharp, exactly -- what to -- how to do it."
In the absence of fraud, LIRC's factual determinations are binding on this
court unless they are not supported by substantial and credible evidence. Section
102.23(1)(a) and (6), Stats. Substantial evidence is "such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion." City
of La Crosse
Police & Fire Comm'n v. LIRC, 139 Wis.2d 740, 765, 407
N.W.2d 510, 520 (1987)
(citation omitted). Here, LIRC's factual determination that Larson was trained to
cleanup blood was supported by substantial evidence.
Whether an employer's conduct constituted good cause for a voluntary
termination of employment presents a question of law, but one that is heavily
intertwined with value determinations and the facts of the case. See
Nottelson, 94
Wis.2d at 115-17, 287 N.W.2d at 768. LIRC has long-standing experience, technical
competence, and specialized knowledge in administering the unemployment
compensation statutes, see Hubert, 186 Wis.2d at 597,
522 N.W.2d at 515, and this
expertise, plus the nature of the legal question, dictates that we give great weight to
LIRC's decision, see Charette v. LIRC, 196 Wis.2d
956, 960, 540 N.W.2d 239, 241
(Ct. App. 1995). We conclude that LIRC's determination that Larson lacked good
cause for terminating his employment was appropriate.
By the Court.--Order affirmed.
Not recommended for publication in the official reports.
FINE, J. (dissenting). I would remand to the Commission so it can
consider the material presented to us by Larson. Accordingly, I respectfully dissent.
1 LIRC's decision indicated that it had conferred with the
hearing examiner on the
witnesses' credibility and demeanor, and the decision explained why LIRC reached a
different
conclusion on the legal issue.
STATE OF WISCONSIN
IN COURT OF APPEALS
No.
96-1105(D)