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

PATRICIA A GLASER, Employee

DAIRY QUEEN, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02403272AP


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 five and one-half years as a cake decorator for the employer, an ice cream fast food restaurant. Her last day of work was on March 25, 2002 (week 13).

On March 25, 2002, the employee provided the employer with a medical document stating that she could work with restrictions. The employer did not have a position available within her restrictions.

On May 23, 2002, the employee provided the employer with a medical document that raised her restrictions to light work. The employer offered the employee the position of decorating the cake blank. The rate of pay was $12.00 per hour and was 40 hours per week. The employee declined the position because she believed that the position would aggravate her condition.

On June 27, 2002, the employee provided the employer with a medical document that raised her restrictions to medium work. There was no competent evidence that the employee was offered a position with the employer. There was no further contact between the parties.

In certified medical documents dated September 12, 2002, the employee's doctor stated that as of June 27 the employee could not work as a cake decorator. In addition, she was restricted to lifting 50 pounds and was to avoid forceful gripping. The employee testified that she is working with vocational rehabilitation. She is only looking for a sales position. She also testified that although she has work experience as a meat cutter, cake decorator, and waitress and worked on an assembly line for a plastic manufacturer she would not be able to perform those types of jobs due to tendinitis and carpal tunnel.

At the hearing a certified expert report on labor market conditions provided by Wisconsin's conditions of employment database was introduced as an exhibit. That report states that the point of pay at which 75% of workers earn more and 25% of workers earn less for positions similar to a cake blank decorator is $6.77. Therefore, a substantially less favorable pay rate for similar work is $6.77.

A labor market analyst testified that with the employee's physical restrictions of medium work and avoiding gripping, that the employee is able to perform 40% of the suitable jobs in her labor market area.

The first issue to be decided is how to characterize the employee's separation of employment with the employer.

The employee contended that the employer suspended her employment. This contention cannot be sustained. On or about May 23 the employer offered the employee a position that it reasonably believed fell within her restrictions provided by the doctor on May 23. She chose not to accept the position. Therefore, it must be held that she quit her employment.

The second issue to be decided is whether the employee's quitting was for any reason that would permit the immediate payment of unemployment benefits.

Wis. Stat. § 108.04(7)(a), provides that if an employee terminates employment, benefit eligibility shall be suspended until four weeks have elapsed since the week of quitting, and the employee has earned wages in covered employment equaling at least four times the employee's weekly benefit rate, unless the termination was with good cause attributable to the employer or was within some other statutory exception. Wis. Stat. § 108.04(7)(c) provides as follows:

Paragraph (a) shall not apply if the department determines that the employee terminated his or her work but had no reasonable alternative because the employee was unable to do his or her work or because of the health of a member of his or her immediate family; but if the department determines that the employee is unable to work or unavailable for work, the employee is ineligible to receive benefits while such inability or unavailability continues.


The employee contended in the alternative that if she quit her employment she should be eligible for unemployment benefits. Her contention must be sustained. The commission is persuaded that the employee could not have performed the position offered to her. In the certified medical documents the employee's doctor stated that she could not perform forceful gripping. The cake blank decorating position would have involved forceful gripping. Therefore, she had no reasonable alternative to quitting because she could not perform work for the employer.

The third issue to be decided is whether the employee was able to work and available for work in the employee's labor market beginning in week 21 of 2002, the calendar week ending May 25.

The statutes provide that a claimant is not eligible for benefits unless able to work and available for work. The Wisconsin Administrative Code implements the statutes and provides that a claimant will not be considered able and available if he or she, without good cause, restricts him or herself to less than 50 percent of the full-time opportunities for suitable work in the labor market, if his or her physical condition or uncontrollable circumstances limit him or her to less than 15 percent of the opportunities for suitable work in the labor market, or if he or she, without good cause, fails to participate in an eligibility review interview.

With the employee's restrictions she is able to perform 40% of the suitable jobs in her labor market. In order to be eligible for unemployment benefits she must be able to perform at least 15% of the suitable jobs. Therefore, she is able to work as of week 21 of 2002.

The commission therefore finds that in week 26 of 2002, the employee's employment was not suspended or terminated by the employer or the employee because the employee was unable to do, or unavailable for, suitable work otherwise available with the employer, within the meaning of Wis. Stat. § 108.04(1)(b)1.

The commission further finds that in week 21 of 2002, the employee terminated work with the employer because the employee was unable to do that work and did not have a reasonable alternative to quitting, within the meaning of Wis. Stat. § 108.04(7)(c), and that the employee was able to work and available for work on the general labor market as of that week, within the meaning of that section.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits as of week 21 of 2002, if she is otherwise qualified.

If the employer is subject to the contribution requirements of the Wisconsin unemployment insurance law, any benefits payable to the employee based on work performed for the employer prior to the quitting will be charged to the fund's balancing account.

Dated and mailed February 28, 2003
glasepa . urr : 132 : 1  VL 1007.01  VL 1023.10 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did not consult with the ALJ who presided at the original hearing regarding witness credibility. The commission's reversal of the ALJ's decision is based on consideration of testimony presented at the remand hearing, in particular, testimony from a labor market analyst as to the employee's ability to work on the general labor market.


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uploaded 2003/03/10