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


CHRISTINE M OHMAN, Employe

GAGE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 97402499AP


On September 19, 1997, the Department of Workforce Development (department) issued an initial determination finding that the employe quit but not for any reason allowing payment of benefits. The employe timely appealed. A hearing was held before an administrative law judge (ALJ). On November 10, 1997, the ALJ issued an appeal tribunal decision (ATD), reversing the initial determination, finding that the employe quit because she was physically unable to do her work and had no reasonable alternative but was able to work and available for work on the general labor market within the meaning of Wis. Stat. § 108.04(7)(c). The employer timely petitioned the commission for review of the appeal tribunal decision.

On January 29, 1998, the Labor and Industry Review Commission (commission) on its own motion, ordered that testimony be taken before an ALJ, acting on behalf of the commission, with respect to a newly submitted UCB-474 medical form. The hearing was held on February 23, 1998 before an ALJ. The employe neither appeared at the remand hearing nor submitted a new UCB-474 medical form. The employer appeared at the remand hearing.

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 approximately ten years in various positions for the employer, a mail order and gift shop. The employe's last day of work was August 29, 1997 (week 35).

The employe performed services for the employer in a large warehouse. In 1995 the employe began to experience problems due to styrofoam the employe worked with and mold that could be found in the warehouse. The employe repeatedly complained to the employer. The employer contacted the state for an occupational health on- site consultation. The consultation report, admitted as exhibit 4, cited the employer for a hazardous finding regarding the way a certain gas was stored. Otherwise, the consultation report cited no other problems on the employer's premises.

The employe still continued to have problems at work. Her problems included sinus headaches, coughing and itchy eyes. On August 31, 1997, the employe informed the employer she was quitting her employment due these symptoms. Since quitting, the employe has not experienced any of the related symptoms and began working for another employer on September 15, 1997.

The issue for review is whether the employe quit her employment for any reason which would permit the payment of benefits. The most relevant statutory exception in this case is found in Wis. Stat. § 108.04(7)(c). Section 108.04(7)(c) permits an employe to voluntarily terminate employment in the case of health problems which make continued employment impossible, where the employe has pursued and exhausted reasonable alternatives short of quitting, but only where the employe remains generally able to work and available for work after quitting.

The ALJ found that the employe terminated her work as she had no reasonable alternative because she was unable to perform her work for the employer within the meaning of Wis. Stat. § 108.04(7)(c). The ALJ based her finding on the employe's testimony as well as a certified medical report, form UCB-474 that the employe submitted. The UCB-474 however failed to indicate whether the employe could no longer work for the employer even though the employe's physician found that the employe suffered from mild aortic insufficiency. The report also indicated that the employe could work full time without restrictions and noted that the employe had been working since September 15, 1997 without any medical problems.

However, because the UCB-474 did not support the employe's contention that she was physically unable to perform any work for the employer due to her sinus related symptoms, the commission remanded the matter to the department for additional evidence on the issue. Specifically, the employe was provided with an additional opportunity to resubmit a UCB-474 that could support her contention that she was physically unable to perform work for the employer due to her sinus related symptoms. The employe neither appeared at the hearing nor submitted a UCB-474 to support this contention.

Consequently, the commission finds that the ATD lacks credible sufficient medical evidence to support a finding that the employe was physically unable to perform her job for the employer within the meaning of Wis. Stat. § 108.04(7)(c). Given the employe's complaints and the reason she quit, the commission is satisfied that the employe needed to provide credible medical evidence to support a finding that she was physically unable to perform her job for the employer. The UCB-474 submitted at the original hearing is insufficient as it does not indicate that the employe could no longer perform her job for the employer due to her sinus related symptoms.

The commission therefore finds that in week 36 of 1997, the employe voluntarily terminated her employment but failed to establish that she was physically unable to do work for the employer within the meaning of Wis. Stat. § 108.04(7)(c). The employe also failed to establish that her quitting met any other statutory exception permitting the payment of benefits.

There is no overpayment as the employe has requalified as week 41 of 1997.

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c), because although the overpayment did not result from the fault of the employe as provided in Wis. Stat. § 108.04(13)(f), the overpayment was not the result of a department error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is ineligible for benefits beginning in week 36 of 1997, and until four weeks have elapsed since the end of the week of quitting and the employe has earned wages in covered employment performed after the week of quitting equaling at least four times her weekly benefit rate which would have been paid had the quitting not occurred. There is no overpayment as the employe has requalified as of week 41 of 1997.

Dated and mailed: March 19, 1998
ohmanch.urr : 135 : 1 VL 1023.10 VL 1023.16 PC 714.10

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did not confer with the ALJ because it does not reverse on the basis of witness credibility and demeanor. Rather, the commission reaches a different legal conclusion upon essentially the same set of facts as found by the ALJ. Consequently, a credibility conference was not necessary.

The commission is satisfied that the employe failed to produce credible sufficient medical evidence that she was physically unable to perform her work for the employer as a result of her sinus related symptoms. While the commission credits the employe's testimony, the testimony alone is insufficient to support a finding that she was physically unable to perform her work for the employer. Credible medical evidence is necessary under these circumstances.


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