This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C8-96-1301

Paul O. Hudacek,

Relator,

vs.

Labounty Manufacturing, Inc.,

Respondent,

Commissioner of Economic Security,

Respondent.

Filed January 21, 1997

Affirmed

Peterson, Judge

Department of Economic Security

File No. 1689UC96

Paul O. Hudacek, 5342 S. Hudacek Rd., Superior, WI 54880 (relator pro se)

John L. Lindell, Holstad & Larson, PLC, Suite 130, 3535 Vadnais Center Dr., St. Paul, MN 55110 (for respondent Labounty Manufacturing, Inc.)

Kent E. Todd, 390 No. Robert St., St. Paul, MN 55101 (for respondent Commissioner of Economic Security)

Considered and decided by Peterson, Presiding Judge, Parker, Judge, and Willis, Judge.

U N P U B L I S H E D O P I N I O N

PETERSON, Judge

The Commissioner of Economic Security, by her representative, concluded that Paul Hudacek's excessive absenteeism constituted misconduct disqualifying him from receiving reemployment insurance benefits. We affirm.

F A C T S

Paul Hudacek began employment with Labounty Manufacturing, Inc. in May 1995. On July 14, two coworkers claimed that Hudacek had been drinking before he came to work. A supervisor warned Hudacek that this practice was unacceptable, and documented the warning.

On July 17, Hudacek was absent from work. His absence was considered excused. On August 5, Hudacek was absent due to illness.

On August 11, a supervisor sent Hudacek home, claiming that he had been drinking before he came to work. The supervisor gave Hudacek a written warning about the incident. Hudacek's absence was considered unexcused.

Effective August 22, Hudacek's schedule was changed. He did not complain about his transitional work schedule, but decided not to work his scheduled hours on August 27, 28, and 29. His absences on those days were considered excused.

Upon the advice of Labounty personnel, Hudacek went to a counselor for an alcoholism assessment. The counselor recommended outpatient treatment, but Hudacek did not begin treatment because he thought it would interfere with his days off.

On September 10, Hudacek failed to report for work because he was in a detoxification center. He did not call Labounty before his scheduled shift began that day, and his absence was considered unexcused. On September 14, Hudacek received a written warning stating that one more unexcused absence would be grounds for discharge.

On October 22, Hudacek worked on his car for five hours and did not go to work because he was too tired. On October 27, he was discharged for poor work performance and excessive absenteeism.

D E C I S I O N

An employee who is discharged for misconduct is disqualified from receiving reemployment insurance benefits. Minn. Stat. § 268.09, subd. 1(b) (Supp. 1995).

"* * *[T]he intended meaning of the term 'misconduct' * * * is limited to conduct evincing such wilful or 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, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good-faith errors in judgment or discretion are not to be deemed 'misconduct' * * *."

Tilseth v. Midwest Lumber Co., 295 Minn. 372, 374-75, 204 N.W.2d 644, 646 (1973) (omissions in original) (quoting Boynton Cab Co. v. Neubeck, 237 Wis. 249, 259, 296 N.W. 636, 640 (1941)).

We review the Commissioner's representative's findings of fact in the light most favorable to the decision, and we will not overturn the findings if there is evidence in the record that reasonably tends to sustain them. Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989). The Commissioner's representative may rely on hearsay. Seemann v. Little Crow Trucking, 412 N.W.2d 422, 426 (Minn. App. 1987).

We will not consider issues that are raised for the first time before this court. Jaakola v. Duluth/Superior Area Educ. Television Corp., 374 N.W.2d 215 (Minn. App. 1985). Also, we will not consider evidence that was not in the record before the Commissioner's representative. Plowman v. Copeland, Buhl & Co., 261 N.W.2d 581, 583 (Minn. 1977).

In Evenson v. Omnetic's, 344 N.W.2d 881, 883 (Minn. App. 1984), we concluded that an employee's

continued tardiness, combined with several warnings, evidence[d] disregard by the employee of the employer's interest [and was] a violation of standards of behavior which the employer had a right to expect of its employees.

See also Jones v. Rosemount, Inc., 361 N.W.2d 118, 120 (Minn. App. 1985) (although there was no specific showing that employee's absenteeism was wilful or deliberate, it was sufficiently chronic and excessive to demonstrate a lack of concern for her job; regardless of the reason for her absence on her last day, her pattern of persistent absence demonstrated negligent behavior justifying denial of reemployment benefits).

The record supports the Commissioner's representative's findings. Hudacek's last absence, combined with his prior absences, rose to the level of misconduct as defined in Tilseth, 295 Minn. at 374-75, 204 N.W.2d at 646.

An invidual who is discharged for misconduct is not disqualified from receiving reemployment insurance benefits if the discharge is "due to personal, serious illness provided that such individual has made reasonable efforts to retain employment." Minn. Stat. § 268.09, subd. 1(c)(2) (Supp. 1995). Chemical dependency is considered a serious illness:

An individual who is separated from employment due to the individual's illness of chemical dependency which has been professionally diagnosed or for which the individual has voluntarily submitted to treatment and who fails to make consistent efforts to maintain the treatment the individual knows or has been professionally advised is necessary to control that illness has not made reasonable efforts to retain employment.

Id.

The record suggests that Hudacek may be chemically dependent. But Hudacek was discharged because of his excessive absenteeism -- not because of his alcoholism. See Kemp v. United States Dep't of Agric., 385 N.W.2d 879, 883 (Minn. App. 1986) (although employee's absences may have been due to alcoholism, his unapproved absences, not illness, constituted disqualifying misconduct); Beyer v. Heavy Duty Air, Inc., 393 N.W.2d 380, 382 (Minn. App. 1986) (affirming decision that employee's separation was "due to job dissatisfaction, rather than chemical dependency").

Affirmed.