This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. §subd. 3 (1994).


Robert J. Wehner,


Carlson Store Fixture Company,

Commissioner of Economic Security,

Filed September 10, 1996
Willis, Judge

Department of Economic Security
Agency File No. 9382UC95

Joseph L. Daly, Hamline University School of Law, Michael R. Taylor, John H. Stechmann, Certified Student Attorneys, General Practice Clinic, 1536 Hewitt Avenue, St. Paul, MN 55104 (for Relator)

Jeffrey E. Bureau, Gene A. Hoff, Steven E. Ness, Henretta, Cross, Ness & Dolan, 9800 Bren Road East, Suite 250, Minneapolis, MN 55343 (for Respondent Carlson Store Fixture Company)

Kent E. Todd, Minnesota Department of Economic Security, 390 North Robert Street, St. Paul, MN 55101 (for Respondent Commissioner)

Considered and decided by Lansing, Presiding Judge, Kalitowski, Judge, and Willis, Judge.


Relator Robert J. Wehner challenges the decision of respondent Commissioner of Economic Security (Commissioner) disqualifying Wehner from receiving reemployment insurance benefits on the ground that respondent Carlson Store Fixture Company (Carlson) discharged him for misconduct. Wehner argues that (1) the serious illness exception to misconduct applies and (2) the reemployment insurance judge failed to develop fully the relevant facts at the hearing. We affirm.

Wehner began working for Carlson in November 1994. On July 16, 1995, Wehner was jailed for driving under the influence of alcohol. The following day, he notified supervisor Eric Wall that he was in jail. Wehner asked Wall to send his next paycheck to the jail, but he did not state how long he would be absent or otherwise notify the company that he would not be at work for the remainder of the week. Wehner was terminated on July 24, 1995, based on job abandonment. In October 1995, Wehner was released from jail. Upon learning that his job had been terminated, he filed a claim for reemployment insurance benefits.
The Minnesota Department of Economic Security denied Wehner's claim, finding that he was discharged for misconduct. Wehner appealed that decision and appeared pro se at the hearing before the reemployment insurance judge. Terry Kraus, the human resource manager for Carlson's parent company, testified that she terminated Wehner for absenteeism, claiming that there had been problems with Wehner's attendance prior to July 1995 and that he had received verbal warnings. She submitted the company's personnel policy manual, which states:
If you are unable to work due to illness or some other emergency, you must notify your supervisor as soon as possible after determining that you will be unable to work. Regardless, the supervisor must be notified within the first hour of your scheduled work day. If an absence due to illness is for more than one (1) consecutive day, the employee must notify the Company each additional day.
Consequences for noncompliance with the attendance policy will be subject to disciplinary action, which may include termination.

The reemployment insurance judge determined that Wehner was disqualified from receiving benefits because he was discharged for misconduct. On January 25, 1996, the Commissioner, through her representative, affirmed that decision.

On review of reemployment insurance cases, the Commissioner or an authorized representative makes findings "on the basis of the evidence submitted at the hearing before the reemployment insurance judge." Minn. Stat. § 268.105, subd. 3 (Supp. 1995). On appeal, this court reviews factual findings in the light most favorable to the decision and will not disturb findings that are reasonably supported by the evidence. White v. Metropolitan Medical Ctr. , 332 N.W.2d 25, 26 (Minn. 1983). When reviewing questions of law, this court exercises its independent judgment. Smith v. Employers' Overload Co. , 314 N.W.2d 220, 221 (Minn. 1981). Whether a claimant is properly disqualified from receiving reemployment insurance benefits is a question of law. Id.
1. Applicability of serious illness exception.
Wehner argues that he is entitled to reemployment insurance benefits because his absenteeism, the basis of his misconduct, resulted from alcoholism. Minn. Stat. §subd. 1(b) (1994), provides that an individual is disqualified from receiving reemployment insurance benefits if he or she was discharged for misconduct, but an exception exists where the misconduct results from a serious illness, including chemical dependency. Id. , subd. 1(c)(2). The exception applies only if the "individual has made reasonable efforts to retain employment." Id.
Wehner argues that the serious illness exception applies because alcoholism proximately caused his absence from employment. SeeMoeller v. Minnesota Dep't of Transp. , 281 N.W.2d 879, 882 (Minn. 1979) (holding that claimant's absenteeism resulting from alcohol addiction amounted to misconduct, but it was necessary to determine whether he made reasonable efforts to retain employment). The employer has the burden of proving misconduct by the greater weight of the evidence. Lumpkin v. North Cent. Airlines , 296 Minn. 456, 459-460, 209 N.W.2d 397, 400 (1973). Because misconduct is a disqualification, it is to be narrowly construed. Employers' Overload , 314 N.W.2d at 222. The supreme court has defined misconduct as
conduct evincing such wilful and wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability * * *.

Tilseth v. Midwest Lumber Co. , 295 Minn. 372, 374-75, 204 N.W.2d 644, 646 (1973).
Wehner contends the Commissioner erred by relying on Smith v. American Indian Chem. Dependency Diversion Project , 343 N.W.2d 43 (Minn. App. 1984). We disagree. There, the claimant was discharged for misconduct based on his unexcused absence from work caused by his incarceration for failure to pay a speeding ticket. Id. at 45. The court held that an individual's unavailability due to incarceration "amounted to disregard of attendance standards which his employer had a right to expect him to obey." Id. Moreover, the Smith court relied on Grushus v. Minnesota Mining & Mfg. , 257 Minn. 171, 100 N.W.2d 516 (1960), where the supreme court held that "there was no obligation on the part of the employer to keep the job [of an incarcerated employee] open until such time as the employee might be released from custody." Id. at 176, 100 N.W.2d at 520.
Here, Wehner violated Carlson's policy that employees must notify the company each day that they are absent, and Wehner failed to report to work for three months. Because the record of the agency proceedings contains no reference to Wehner's alleged alcoholism or the serious illness exception, we conclude that the serious illness exception does not apply and that his absenteeism was misconduct. SeeReserve Mining Co. v. Gorecki , 316 N.W.2d 547, 549 (Minn. 1982) (declining to address contentions that were not adequately raised in agency proceedings). Accordingly, we need not address whether Wehner made reasonable efforts to retain employment within the meaning of Minn. Stat. § 268.09, subd. 1(c)(2).
2. Obligation of reemployment insurance judge.
Wehner argues that the hearing before the reemployment insurance judge was unfair because (1) the judge failed to develop fully the relevant facts, as required by Minn. R. 3310.2921 (1995) and (2) his disease prevented him from effectively representing himself. Rule 3310.2921 provides:
The [reemployment insurance judge] 1
should assist unrepresented parties in the presentation of evidence. * * *
The [reemployment insurance judge] shall exercise control over the hearing procedure in a manner that protects the parties' rights to a fair hearing. The [reemployment insurance judge] shall ensure that relevant facts are clearly and fully developed.

Wehner notes that the judge never inquired into the possibility that he might be eligible to pursue the serious illness exception to misconduct. Rule 3310.2921, however, does not require a judge to determine which statutory provisions might apply and to make arguments on behalf of the parties. The reemployment insurance judge fulfilled her responsibility by developing the facts relevant to the arguments raised by the parties.
Wehner also argues that, due to the unique nature of alcoholism and the humanitarian purpose of reemployment insurance laws, judges should have an affirmative duty to inform pro se claimants that chemical dependency can be the basis for asserting the serious illness exception to misconduct. SeeHeitman v. Cronstroms Mfg. , 401 N.W.2d 425, 428 (Minn. App. 1987) (reemployment insurance laws are humanitarian in nature and disqualification provisions should be liberally construed in favor of allowing benefits). Wehner maintains that denial of one's addiction is typically associated with alcoholism and that an alcoholic claimant further would be likely to hide his or her disease for fear of automatic rejection of the claim and would not expect a statutory exception to exist. 2
We refuse to impose such a duty on reemployment insurance judges. First, the notice of the hearing specifically directs claimants to the statutory and regulatory provisions describing their rights. Second, it is unreasonable to expect judges to inform pro se claimants of all potentially applicable provisions. Third, Wehner makes no compelling argument for limiting the duty to the alcoholism exception, particularly because it is unclear whether a brief judicial inquiry would overcome an alcoholic's alleged state of denial. Finally, claimants are entitled to obtain a representative or an attorney for the agency proceedings.

1 The 1995 legislature amended Minn. Stat. §§by substituting "reemployment insurance judge" for "referee." 1995 Minn. Laws ch. 54, §§

2 Wehner attempts to draw an analogy to Miranda v. Arizona , 384 U.S. 436, 86 S.1602 (1966), arguing that a duty to inform a pro se claimant of the existence of the serious illness exception and the duty to inform a detainee of his rights are both intended to inform vulnerable individuals that they are entitled to advance their rights without the fear of reprisal. That analogy lacks merit because Miranda only requires police to notify detainees of certain procedural rights; it does not require police to inform detainees of the substantive law underlying any charges.