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


DEAN A WHITEWATER, Employe

FLEMING COMPANIES INC, Employer

UNEMPLOYMENT COMPENSATION DECISION
Hearing No. 97002251LX


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 the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked about ten and one-half years for the employer, a wholesale grocery distribution company. For the first three and one-half years the employe worked in the employer's garage washing trailers and filling trucks. For the remainder of the employe's employment he was a semi-truck driver. In September of 1996, the employe was injured and claimed a work- related injury. The employe was diagnosed with a herniated disc. The employe's work restrictions included no lifting over 25 pounds, no prolonged sitting, bending, crawling and kneeling. The employe was medically restricted from performing work as a truck driver.

The employer's policy allows employes injured on the job to be placed in light-duty positions. The employe was placed in such a position doing office work such as filing, running errands, and packaging in the employer's print shop. On January 12, 1997, the employe was cited by the county police for driving a personal automobile while under the influence of an intoxicant. On February 11, 1997 (week 7), he made an initial appearance in traffic court at which time his driving privileges were suspended. The employe informed the employer's transportation manager, Mr. Steinlee, ten days after he received the ticket that he had been arrested for OWI.

On March 25, 1997, the employer's worker's compensation carrier's independent medical examiner determined that the employe's injury was not work related. Because it was not work related, the employer would no longer provide light-duty work for the employe. On March 25, 1997, the employer sent the employe a letter stating that a valid driver's license is a requirement for employment as a truck driver and, pursuant to an abstract from the Division Of Motor Vehicles his license had been suspended through August 12, 1997, and therefore his employment was terminated.

The employe's license was revoked on April 4, 1997. The employe had to wait 90 days to apply for an occupational license. The employe had not obtained an occupational CDL at the time of the hearing because he must be employed to obtain such a license. The employe was informed by his doctor that he could not return to the type of driving he had done for the employer.

The employer introduced the employe's driving abstract which reflects the 1997 arrest and conviction. It also reflects a conviction and license revocation occurring in January of 1992, resulting in a suspension of his operating privileges on February 1, 1992, revocation of his license on February 11, 1992, and reinstatement of the license on February 1, 1993. The abstract further reflects an OWI conviction on May 1, 1993, suspension of operating privileges May 31, 1993, and revocation of his license on July 20, 1993. The abstract reflects that the employe obtained an occupational license issued September 30, 1993. The employe's license was reinstated May 31, 1994.

The employe's employment record indicates that on February 14, 1992, the employe started jail time for the OWI conviction and took a voluntary layoff while in jail. The abstract further reflects the employe took a leave of absence June 2, through August 8, 1993 because he did not have a driver's license.

The issue to be decided is whether the employe's employment was suspended or terminated because of the loss, suspension, or nonrenewal, due to the employe's own fault, of a license issued by a government agency that was required by law in order to perform his customary work for the employer.

The administrative law judge found that the employe's employment was terminated because a license issued by a government agency that was required by law in order to perform his customary work had been suspended, revoked or not renewed due to the employe's fault. The administrative law judge reasoned that the employe was aware that the light-duty assignment was a temporary job until his work-related injury had healed and a determination of his permanent work restrictions was reached.

The commission disagrees with the administrative law judge's legal conclusion. The employe was unable to perform driving duties because of an injury. While on March 25, 1997, the employer determined his injury was not work related, that determination did not change the fact that the employe could not drive because his medical condition restricted him from performing work as a truck driver. Under the employer's policy, if the employer determines that the employe's injury is not work related, the employer does not provide light duty work. However, that does not mean that the employe is able to work. It did not matter whether the employe did or did not have a driver's license on March 25, 1997, because he was physically unable to perform work as a truck driver.

The commission also notes that the employe had previous convictions for operating while intoxicated, and had had his license suspended or revoked during at least two previous periods in his employment with the employer. Following those suspensions or revocations the employe's position had not been terminated. The employe had been allowed to take leaves of absence while serving jail time and until he obtained a commercial driver's license.

The commission therefore finds that in week 7 of 1997, the employe's employment was not suspended or terminated because a license issued by a government agency that was required by law in order to perform his customary work for the employer had been suspended, revoked, or not renewed due to the employe's own fault, within the meaning of Wis. Stat. § 108,04 (1)(f).

DECISION

The decision of the administrative law judge is reversed. This matter is remanded to the department for investigation and determination of the nature of the separation from employment including whether the employe's employment was terminated because he was unable to do or unavailable for suitable work otherwise available with the employer and whether he was able to work and available for work in his labor market.

Dated and mailed July 25, 1997
whitede.urr : 132 : 1  AA 130  PC 713

/s/ Pamela I. Anderson, Chairman

/s/ David B. Falstad, Commissioner


MEMORANDUM OPINION

The commission has reversed the appeal tribunal based on reaching a different legal conclusion and not due to any differing assessment of witness credibility or demeanor. Because the only issue noticed for hearing was whether Wis. Stat. § 108.04 (1)(f), applied to the employe's case, the commission does not have jurisdiction to consider whether the employe's separation was for any other reason requiring suspension or denial of unemployment benefits.

cc: FLEMING COMPANIES

ATTORNEY MICHAEL T FITZPARTICK
FITZPATRICK SMYTH DUNN & FITZPATRICK

ATTORNEY JOSEPH BECKER
SAUER BECKER FLANAGAN & LYNCH LTD


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