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

CYNTHIA L DUNCAN, Employee

WISCONSIN VENEER & PLYWOOD INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02401812AP


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 employee is ineligible for benefits beginning in week 10 of 2002, and until four weeks have elapsed since the end of the week of quitting and the employee has earned wages in covered employment performed after the week of quitting equaling at least four times the employee's weekly benefit rate which would have been paid had the quitting not occurred.

Dated and mailed September 16, 2002
duncacy . usd : 135 : 1  VL 1023.20

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

MEMORANDUM OPINION

In her petition for commission review, the employee argues that the appeal tribunal decision does not state that a party cannot add any evidence before the commission that was not already presented at the hearing. However, the commission's rules provide, at Wis. Adm. Code LIRC § 1.04, that review by the commission is on the record of the case including the synopsis or summary of the testimony or other evidence presented at the hearing. The law requires that the commission's review be based solely on the testimony and documents presented at the hearing before the administrative law judge. For this reason the commission cannot consider factual assertions made in the employee's petition for review or documents submitted within the petition for review which were not already made or submitted at the hearing.

Consequently, the commission cannot address the employee's assertion in her petition that she was told by the physician who assumed care of her that she had permanent restrictions and that he has never heard of these types of restrictions being changed and that changing such restrictions would be bad practice. This information should have been offered by the employee at the hearing, not in her petition for the first time. Thus, if the employee had sought a formal re-evaluation as instructed to do so by her employer after the October 2001 meeting, she would have been able to offer that evidence into the record at the time of the hearing.

The employee argues that the evidence does demonstrate some real and substantial fault by the employer when it did nothing to accommodate the employee and her permanent restrictions, therefore leaving the employee with no other option except to become unemployed. The commission disagrees with this characterization. The employer accommodated the employee within her current (1999) restrictions.

On October 12, 2001, the employee met with the employer's plant manager and its personnel manager. The employee was advised at that time that the employer was unable to grant the employee's requests for transfer to other work assignments because the work assignments she had requested were not within her physical restrictions. At that time the employee told the managers that she felt that her current work assignment was bothering her arm. The employee was then advised by the personnel manager that she should see her doctor for another evaluation of any restrictions on her physical capacity to perform work. After that meeting the employee did not consult a physician and she failed to submit any statement to the employer offering any new or different physical restrictions from those identified by her doctor in 1999. Instead, the employee quit.

The commission is satisfied that the evidence fails to demonstrate any real and substantial fault by the employer that left the employee with no option except to become unemployed. The employee's failure to follow the employer's reasonable instructions to obtain additional medical evidence denied the employer an opportunity to accommodate any new or different physical restrictions the employee may have been given. Therefore, it cannot be held that the employee's quitting meets any statutory exception permitting the immediate payment of benefits.

The employee also cites to various statutes contained in Chapter 111 of the Wisconsin Statutes. The commission however does not have jurisdiction in this unemployment insurance forum to address fair employment issues governed by Chapter 111 of the Wisconsin Statutes.

cc: Thomas Stone


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uploaded 2002/09/30