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

FRANKLIN L WEGNER, Employee

KOLBE BROS LUMBER CO INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02201804WU


On July 10, 2002, the Department of Workforce Development issued an initial determination which held that the employee quit but not for a reason allowing for immediate eligibility for unemployment insurance. The employee filed a timely request for hearing on the adverse determination, and hearing was held on August 28, 2002 in Wausau, Wisconsin before a department administrative law judge. On August 29, 2002, the administrative law judge issued an appeal tribunal decision affirming the initial determination. The employee filed a timely petition for commission review of the adverse appeal tribunal decision, and the matter now is ready for disposition.

Based upon the applicable law and the records and other evidence in the case, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee in this case worked approximately two weeks as a laborer for the employer, a lumber company. The employee quit the employment on June 17, 2002 (week 25), and the issue is whether the quit was for a reason constituting an exception to the general quit disqualification of Wis. Stat. § 108.04(7)(a). The commission concludes that it was, and so reverses the appeal tribunal decision.

The employee is 63 years old. His primary duty was hauling lumber in the employer's planing mill. The work was quite strenuous, and the employee was physically unable to satisfactorily perform it, as evidenced by the employee's statements and by those of the employer's foremen (to the effect that they did not know whether the employee was going to be able to handle the work). As indicated above, the employee's last day of work was Friday, June 14. As of his next day of work, Monday, June 17, the employee had not fully recovered from the strenuousness of work the previous Friday. At that point, he quit the employment because of inability to do the heavy lifting involved.

Wisconsin Stat. § 108.04(7)(e) allows an employee to quit employment, without disqualification, which the employee could have refused outright under Wis. Stat. § 108.04(8). The employee must quit the work for the same good cause he or she could have refused it in the first instance, and must do so within the first ten weeks after starting the work. Wisconsin Stat. § 108.04(8)(a) allows an employee to refuse, for personal good cause, otherwise-suitable work. The employee must be deemed to have had personal good cause, though, to have refused outright the work in question. The unemployment insurance law does not require claimants to accept work they are physically unable to perform, and the employee's physical inability to perform the work was established both by his testimony and by observations of the foremen under whom the employee worked. Thus, by operation of Wis. Stat. § 108.04(7)(e), the employee could quit that employment without penalty.

The commission therefore finds that the employee accepted work in week 23 of 2002, that could have been refused with good cause, and that the employee voluntarily terminated that employment in week 25 of 2002 for the same good cause and within ten weeks after starting the work, within the meaning of Wis. Stat. § 108.04(7)(e).

DECISION

The appeal tribunal decision is reversed. Accordingly, the employee is eligible for benefits beginning in week 25 of 2002, if 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 June 20, 2003
wegnefr . urr : 105 : 1  VL 1034

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision in this matter. The commission's reversal is not based upon a differing credibility assessment from that made by the administrative law judge. Rather, in considering the applicability of Wis. Stat. § 108.04(7)(e), the administrative law judge only considered the portion of that provision relating to Wis. Stat. § 108.04(9)(b), the so-called labor standards provision; she did not consider the portion of Wis. Stat. § 108.04(7)(e) tied to Wis. Stat. § 108.04(8).


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