This opinion will be unpublished and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

C4-96-2574

Pilot City Regional Center,

Relator,

vs.

Michael Poole,

Respondent,

Commissioner of Economic Security,

Respondent.

Filed August 5, 1997

Affirmed

Toussaint, Chief Judge

Department of Economic Security

Paul J. Robbennolt, Dorsey & Whitney, L.L.P., 220 S. Sixth St., Minneapolis, MN 55402 (for relator)

Michael Poole, 1349 Sheridan Ave. No., Minneapolis, MN 55411-2943 (Pro se respondent)

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

Considered and decided by Parker, Presiding Judge, Toussaint, Chief Judge, and Harten, Judge.

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

TOUSSAINT, Chief Judge

Relator Pilot City Regional Center (Pilot City) as employer challenges the commissioner's representative's decision that respondent Michael Poole was involuntarily separated from his job for reasons other than misconduct and is therefore entitled to reemployment insurance benefits. Because Poole's actions were not misconduct as a matter of law, we affirm.

D E C I S I O N

An employee terminated for misconduct is disqualified from receiving reemployment insurance benefits. Minn. Stat. § 268.09, subd. 1(b) (1996).

[T]he intended meaning of the term "misconduct" * * * is limited to conduct evincing such willful 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 a 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" * * * .

In re Tilseth, 295 Minn. 372, 374-75, 204 N.W.2d 644, 646 (1973) (quoting Boynton Cab Co. v. Neubeck, 296 N.W. 636, 640 (Wis. 1941)). In Feia v. St. Cloud State College, 309 Minn. 564, 244 N.W.2d 635, 636 (1976), the court expanded this definition of misconduct to include conduct demonstrating a lack of concern for the job.

The employer in a reemployment insurance case bears the burden of proving, by the greater weight of the evidence, that the employee committed misconduct. Lumpkin v. North Central Airlines, Inc., 209 N.W.2d 397, 400 (1973) (citations omitted). Whether an employee has committed misconduct is a question of law. Cook v. Playworks, 541 N.W.2d 366, 368 (Minn. App. 1996) (whether findings support determination of misconduct is question of law subject to de novo review).

Pilot City's contention that the commissioner's representative misapplied the law in determining that Poole's conduct did not constitute misconduct is unsupported by the record. Poole was employed as a resource aide, picking up and delivering furniture, for Pilot City. After receiving a work-related injury to his left knee in March 1996, Poole (1) initially received medical treatment on April 30, (2) was restricted from working for two weeks or until the pain was gone, (3) notified Pilot City then, and again on May 15, that he had seen the doctor and would be out of work indefinitely, and (4) went to work on June 6, in uniform, with a doctor's note restricting his lifting and excessive knee motions.

Pilot City (1) notified Poole that it did not have light-duty work for him, and (2) on June 10, informed Poole that, under its personnel policy, he needed to bring in a "prognosis" letter from the doctor explaining the severity of the injury and the anticipated

recovery period. About one month later, after not hearing from Poole, Pilot City sent him a registered letter informing him that he needed to provide a prognosis letter by July 22, or he would be terminated. On July 15, Poole informed Pilot City that he had a doctor's appointment on July 17. He expressed some concern that he would not be able to get the precise type of letter that Pilot City wanted because he had seen several different doctors.

On July 18, Poole presented Pilot City with a doctor's note authorizing his return to work with walking, stair-climbing, and lifting restrictions. The note did not contain a prognosis. Pilot City informed Poole that it had no light-duty work for him and again informed him that it needed a prognosis letter by July 22, or he would be terminated. On July 23, Pilot City terminated Poole because he had not provided the requested prognosis letter.

A department's claims representative determination that Poole was terminated for misconduct and was thus disqualified from reemployment insurance benefits was affirmed by a reemployment insurance judge after a hearing. But, the commissioner's representative then reversed, holding that Poole had been discharged for reasons other than misconduct and was entitled to benefits.

We affirm the commissioner's representative's decision and hold that Poole did not commit misconduct and is entitled to benefits. The record demonstrates that Poole provided several doctor's notes and continually notified Pilot City about his medical status. Although he did not obtain the precise type of documentation requested, his conduct demonstrates a good-faith effort complying with Pilot City's policy and supports the conclusion that Poole did not commit misconduct.

Affirmed.