STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)


BETTY A VILLALOBOS, Employee

CITY OF BELOIT, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 97003997JV


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employe is ineligible for benefits beginning in week 29 of 1997, and until four weeks have elapsed since the end of the week of quitting and she has earned wages in covered employment performed after the week of quitting equaling at least four times the employe's weekly benefit rate which would have been paid had the quitting not occurred.

Dated and mailed October 21, 1997
villabe.usd : 132 : 1  VL 1023  VL 1033

/s/ Pamela I. Anderson, Chairman

/s/ David B. Falstad, Commissioner


MEMORANDUM OPINION

The employe has petitioned for commission review of the adverse appeal tribunal decision which found that she did not voluntarily terminate her employment because she was unable to perform her work and had no reasonable alternative. The employe states in her petition that the administrative law judge erroneously found that she could have secured alternative living arrangements in Kentucky and continued in her job. The employe points to documentation presented at the hearing, a letter from her therapist, which indicates that she was advised to move to Wisconsin because of mental health reasons. However, the commission has generally held that an employe who quits employment because he or she is unable to perform his or her work for the employer must present certified medical evidence to support such contention. Further, the commission has held, and has been affirmed by at least one circuit court, that it is insufficient that an employe establish that a move may be "preferable or beneficial" but rather must establish that the move is "necessary or required." See Barbara J. Witchard v. LIRC, No. 96-CV-1188 (Wis. Cir. Ct. Dane County Jan. 12, 1997).

In this case, the employe's counselor's statement merely indicates that it was "suggested" that she move back to Wisconsin to be near her family. It did not indicate that it was medically necessary. Further, the report itself is hearsay. The employe admitted in her testimony at the hearing that when she gave her statement to the department initially she was offered a UCB-474, medical report, and declined to accept such report. Therefore, the employe did have the opportunity to have a certified medical report completed by a qualified individual and declined that opportunity. For these reasons, the employe failed to establish at the hearing by certified medical evidence that she was unable to perform her work for the employer and had no reasonable alternative but to quit that work. Therefore, she has not established that her quitting fell within the exception of Wis. Stat. § 108.04 (7)(c), or was for any other reason that would permit immediate benefit payment.

cc: Jefferson County Health Department


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