This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).







James E. Fennert,





Medtox Laboratories Inc. (1996),



Commissioner of Employment and Economic Development,




Filed November 9, 2004

Reversed and remanded

Lansing, Judge


Department of Employment and Economic Development

File No. 17060 03



Diane Marie Dube, Daniel L. McGarry (certified student attorney), William Mitchell Law Clinic, 875 Summit Avenue, St. Paul, MN 55105 (for relator)


Stephanie D. Sarantopoulos, Littler Mendelson, Suite 3110, 33 South Sixth Street, Minneapolis, MN 55402 (for respondent Medtox Laboratories Inc. (1996))


Lee B. Nelson, Linda A. Holmes, Minnesota Department of Employment and Economic Development, 390 North Robert Street, St. Paul, MN 55101 (for respondent Commissioner of Employment and Economic Development)


            Considered and decided by Lansing, Presiding Judge; Kalitowski, Judge; and Wright, Judge.

U N P U B L I S H E D   O P I N I O N


            In this certiorari appeal from the denial of unemployment benefits, James Fennert seeks reversal or, alternatively, a remand to consider evidence of incapacity.  Because the department acknowledges that remand is appropriate, and we conclude that subsequently acquired medical records are material to determining whether Fennert lacked capacity, we reverse and remand.


            James Fennert’s employment as a courier for Medtox Inc. was terminated for unauthorized driving outside his assigned route and failing to perform his assigned courier responsibilities over a seven-hour period.  The department denied Fennert’s application for unemployment benefits, and he appealed to an unemployment law judge (ULJ).  In the hearing before the ULJ, Fennert appeared without representation.

The transcript from this hearing establishes that Fennert left his workplace about an hour before his scheduled departure time to start his Edina-Bloomington-St. Paul route and neglected to take the company’s two-way radio with him.  Fennert proceeded to drive far beyond his assigned route and arrived in Buffalo, Minnesota.  He did not contact his employer, and he did not make his required courier stops.  When Fennert returned the car to his employer at the end of the day, he said that he was under pressure and may have inadvertently taken the wrong medications that morning.  Fennert was unable to explain why he failed to contact his employer when he realized he was outside his designated area or how he managed to continue driving despite his claim that he was completely unaware of where he was going.

The ULJ rejected Fennert’s explanation that his behavior was attributable to a medication mix-up and concluded that his actions constituted employment misconduct.  Fennert appealed to the commissioner’s representative, seeking reversal or, alternatively, remand for consideration of additional evidence.  The commissioner’s representative effectively denied the request to remand for additional evidence and affirmed the ULJ’s findings of employment misconduct. 

The additional evidence that Fennert sought to introduce consisted of medical records from a Hennepin County Medical Center inpatient evaluation conducted after the driving incident.  The medical  records indicate that Fennert has “significant decreased  functional cognitive ability” and severe memory and attention deficit problems.  These deficits result in repeated instances of lost time, a below average “waking memory,” and a limitation in oral expression evidenced by communication that “makes sense for [the] first couple of words, then goes into rambling nonsense.”  The evaluating doctors reported that many of these symptoms were ongoing and Fennert suffered from mental ailments independent of his difficulty with the medications. 

On appeal, Fennert and the department agree that remand is appropriate for consideration of the supplemental evidence because it pertains to Fennert’s capacity at the time of employment termination and at the hearing.  Medtox, in a written response to Fennert’s brief, opposes remand.


Employment misconduct is “intentional, negligent, or indifferent conduct, on the job or off the job (1) that evinces a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee, or (2) that demonstrates a substantial lack of concern for the employment.”  Minn. Stat. § 268.095, subd. 6(a) (Supp. 2003).  “[P]oor performance because of inability or incapacity,” however, does not constitute employment misconduct.  Id.

In the de novo review of the ULJ’s decision, the commissioner’s representative has the responsibility to make findings of fact and a decision or to “remand the matter back to an unemployment law judge for the taking of additional evidence and the making of new findings and decision based on all the evidence.”  Minn. Stat. § 268.105, subd. 2(c) (Supp. 2003).  For the limited purpose of deciding whether to remand to an ULJ for a further evidentiary hearing, a commissioner’s representative may consider evidence not submitted at the previous hearing.  Id., subd. 2(d).  In reviewing the ULJ’s decision and a request for submission of additional evidence, the commissioner’s representative has an obligation to recognize and interpret claims of individuals who are unrepresented by counsel.  Miller v. Int’l Express Corp., 495 N.W.2d 616, 618 (Minn. App. 1993). 

The transcript of the hearing before the ULJ discloses that Fennert had substantial difficulty in presenting his evidence.  He repeatedly attempted to explain the effects of his medication and the nature of his condition, but the explanation lacked coherence.  The lack of coherence was underscored by the ULJ’s repeated requests for documentation of Fennert’s medical condition.  In response, Fennert only provided an insurance form, a list of prescribed medicines, and a doctor’s note.

Fennert’s conduct at the hearing, coupled with the information in the medical records detailing Fennert’s specific deficits, suggests a lack of capacity at the time of the driving incident and at the time of the hearing.  The indication of a medical condition that would affect Fennert’s ability to express himself at the hearing is particularly significant in light of the duty owed to Fennert as an unrepresented applicant.  Minn. R. 3310.2921; Thompson v. County of Hennepin, 660 N.W.2d 157, 161 (Minn. App. 2003) (addressing the “duty to reasonably assist pro se parties with the presentation of evidence and the proper development of the record”).

The commissioner’s representative did not address Fennert’s request to submit additional evidence and rejected the request for remand.  The medical records that were submitted as a basis for the remand request are material in that they provide a fuller record for a determination of whether Fennert was working under a disability or impairment which would weigh against the allegation of misconduct. 

Consistent with Fennert’s and the department’s request, we remand to the commissioner’s representative to remand in turn to a ULJ for the purpose of admitting and considering Fennert’s medical records.  Although Medtox opposes remand, the importance of providing a full and fair hearing and to develop a complete record outweighs any inconvenience to the employer.  In light of the remand, we do not address Fennert’s remaining arguments on the determination of employment misconduct.

            Reversed and remanded.