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

DONNA M BATEMAN, Employee

MARY B HOVEL DDS, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01001830LX


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 makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for over two years as a part-time hygienist for the employer, which operates a dental practice. Her last day of work was February 1, 2001 (week 5).

The initial issue is whether the employee quit or whether the employer discharged her. If she quit, a secondary issue is whether the quitting was for any reason that would permit the immediate payment of unemployment benefits. If she was discharged, a secondary issue is whether the discharge was for misconduct connected with that employment.

The employee takes lithium to control a bi-polar disorder. As of her last day of work, she had not taken her prescribed dosage, and behaved erratically. The employer then sent her home and told her to call the owner during the weekend. Later that day, the employee's father notified the owner that the employee had been hospitalized. She remained hospitalized for several weeks. On or about February 25 (week 9), the employee gave the owner a letter stating that she had been discharged from the hospital and that a nurse was administering her medication. After her release, the employee went to the employer's office and asked if she could have her job back. The owner told her she would think about it. The employee asked the employer on several occasions if she could have her job back, but did not get a positive response. On March 5 (week 10), the employee called and talked to the employer's administrator. The administrator told the employee she could come in and pick up her belongings.

The employee's employment was initially suspended because she was unable to perform her job for the employer. In such cases, a worker's benefit eligibility depends on whether she is able to work in general, despite the disability that prevents her from working for the employer. The administrative code provides that a claimant will not be considered able to work unless she can perform at least 15 percent of the jobs for which she is qualified, despite her physical limitations or other uncontrollable restrictions.

The employee presented medical evidence that indicates that until February 22, 2002 (week 8), the employee was not able to work and available for work. Thereafter, she was available for work on a half-time basis only. However, it was not determined whether, as a result of this, the employee became able to work and available for work.

The employee contended that she was discharged. The commission agrees. The record indicates that the employee, after her release from treatment, made many attempts to return to work. The employer did not tell her that she could return to work, and in fact, did not schedule patients for her. While the employer did not tell the employee she had been discharged, its actions, in failing to schedule work and telling her to pick up her personal items, amounted to a discharge. The employee's absence and her erratic behavior caused problems to the employer, however, they were caused by her medical condition. While the employer may have made a valid business decision when it discharged the employee, the commission cannot conclude that the employee's actions amounted to misconduct connected with her employment.

The commission finds that in week 5 of 2001, the employee's employment was suspended because the employee was unable to do, or unavailable for, suitable work otherwise available with the employer and that the employee was unable to work, or unavailable for work, within the meaning of Wis. Stat. § 108.04(1)(b)1. This matter should be remanded for a determination as to whether, in week 8 of 2001, the employee became available for work as a result of the change in her medical condition.

The commission therefore finds that in week 10 of 2001, the employee was discharged by the employer, but not for misconduct connected with her work, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is affirmed in part and reversed in part. Accordingly, the employee is ineligible for benefits beginning in week 5 of 2001, and until she is able to work and available for work. The matter is remanded for a determination as to whether, in week 8, of 2001, the employee was able to work and available for work, and if benefits were overpaid to the employee. Beginning in week 10 of 2001, the employee is eligible for benefits if she is otherwise qualified.

Dated and mailed February 8, 2002
batemdo . urr : 145 : 1   MC 626

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner



MEMORANDUM OPINION

The commission did discuss witness credibility and demeanor with the ALJ who held the hearing, however, it made its decision based mainly upon evidence from the remand hearing. This evidence was not available to the ALJ when he made his decision.

cc: 
Donald A. Bateman
Attorney Al Wieser, Jr.


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uploaded 2002/02/14