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

TIMOTHY J COLLINS, Employee

DUNI SUPPLY CORPORATION, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03607164MW


On July 29, 2003, the Department of Workforce Development issued an initial determination which held that the employee quit his employment 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 20, 2003 in Milwaukee, Wisconsin before a department administrative law judge. On August 21, 2003, 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 worked approximately five months as a quality manager for the employer. He quit his employment on March 14, 2003 (week 11), 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, specifically the medical necessity exception, Wis. Stat. § 108.04(7)(c), and so reverses the appeal tribunal decision. The commission also believes further inquiry by the department is warranted with regard to the nature of the employee's subsequent employment with Brooks Placement Network.

In early March of 2003, the employee gave the employer notice of his intent to quit the employment. The employee was quitting his employment for two reasons which must be deemed interconnected. He was taking the prescribed drug Paxil, which was causing him to "nod off" during his one and a half hour (each way) commute to the employer. At the end of February, a subsequent employer, Brooks Placement Network, offered the employee employment at a location only 20 minutes from his home. Because of the drowsiness the employee was experiencing with his medication, he quit his then-current employment in order to accept the subsequent employment.

A quit of employment generally disqualifies one from immediate unemployment insurance eligibility, pursuant to Wis. Stat. § 108.04(7)(a). One exception to this disqualification is Wis. Stat. § 108.04(7)(c), the so-called "quit/medical necessity" exception. Pursuant to this exception, the general disqualification is inapplicable if an employee terminates his or her work but had no reasonable alternative because the employee was unable to do his or her work. Strictly, the employee's inability did not pertain to the actual work, but rather to the commute to and from work. Both the commission and the courts, however, have interpreted this provision to include such factors as commuting. See, e.g., Ferguson v. Goodyear Tire & Rubber Co., UI Dec. Hearing No. 91-001978 MD (LIRC April 6, 1992). The employee's inability to make the three-hour per day commute his job required, thus falls within the scope of Wis. Stat. § 108.04(7)(c).

The commission therefore finds that, in week 11 of 2003, the employee terminated his employment but had no reasonable alternative thereto, within the meaning of Wis. Stat. § 108.04(7)(c). Given the circumstances of the case, there is no issue as to the employee's general ability to work or availability for work. There is an issue, however, as to the nature of the employee's subsequent employment with Brooks Placement Network. According to the employee, his subsequent employment was as an independent contractor and not as an employee. It is not clear, though, that the employee's assessment is accurate, at least under Wisconsin law; for this reason, the commission believes inquiry by the department into the actual nature of the work and the employment relationship between the employee and that employer is necessary.

DECISION

The appeal tribunal decision is reversed. Accordingly, the employee is eligible for unemployment insurance, if he is otherwise qualified. This matter is remanded to the Department of Workforce Development for full investigation of the status of the employee's work for Brooks Placement Network.

Dated and mailed October 30, 2003
colliti . urr : 105 : 1 VL 1023.10  VL 1023.25

/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 case. The commission's reversal was not based upon a differing credibility assessment from that made by the administrative law judge, as the facts were undisputed. Rather, as a matter of law the commission concluded that the circumstances of the employee's quit falls within the scope of Wis. Stat. § 108.04(7)(c). In denying the employee's claim, the administrative law judge reasoned in part that the employee had accepted the employment in question knowing the potential effects upon him of his medication and that he thus accepted the risk of drowsiness during his commute. It does not strike the commission as sound public policy, however, to require an employee to choose between unemployment insurance and remaining in a potentially dangerous, if not fatal, employment relationship.


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uploaded 2003/11/03