BEFORE THE
STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

In the matter of the unemployment benefit claim of

SHELBY J. ROSIN, Employee

Involving the account of

DAVID W. LYSSER, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 84-41655 FO


A department deputy's initial determination held that in week 22 of 1984, the employe terminated her employment with the employer, within the meaning of section 108.04(7)(a) of the statutes. Accordingly, benefits were suspended. The employe timely appealed and a hearing was held before an appeal tribunal. The appeal tribunal affirmed the initial determination and the employe timely filed a petition for commission review.

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 for four hours as an assistant to the employer, a licensed physical therapist. Her first and last day of work was May 30, 1984 (week 22).

When the employe applied for the position with the employer, he informed her that the job would consist of assisting him in his physical therapy duties at the nursing home, including the administering of exercise and whirlpool therapy to home residents in his absence. Prior to the employe's first day of employment, the employer verbally instructed her to administer to particular patients, with the understanding that the employer would not be present. When the employe reported to the nursing home on May 30, 1984, she did so with misgivings, because she did not believe she could legally perform the work assigned to her without the supervision of a physical therapist. The employe had received training as a nursing assistant but was not a licensed physical therapist.

After performing this work for approximately four hours on May 30, 1984, the employe decided to quit because she did not believe she was legally qualified to be doing the work by herself. She left the nursing home, and subsequently made two attempts to telephone the employer, but he was not available. Finally, she telephoned the nursing home administrator and informed that individual that she was terminating her employment with the employer. She asked that a note be left for the employer, explaining that the reason for her quitting was that she did not feel qualified to do the work in the employer's absence. The employer received this note but did not thereafter contact the employe. The employer has indicated that he did not believe it was illegal to have the employe perform the work alone.

Section 448.03(1) of the statutes provides:

"No person may practice medicine and surgery, podiatry or physical therapy, or attempt to do so or make a representation as authorized to do so, without a license granted by the board." (Emphasis added).

Section 448.01(4) of the statutes provides:

" 'Physical therapy' means that branch or system of treating the sick which is limited to therapeutic exercises with or without assistive devices, and physical measures including heat and cold, air, water, light, sound, electricity and massage; and physical testing and evaluation."

Section 448.03(2)(f) of the statutes provides:

"Nothing in this chapter shall be construed either to prohibit, or to require a license or certificate under this chapter for any of the following: any person assisting a physical therapist in practice under the direct, immediate, on premises supervision of such physical therapist."

The employer expected the employe to administer exercise and whirlpool therapy to nursing home patients in his absence. These actions would have constituted "physical therapy," as that term is defined in section 448.01(4). Legally, the employe could have assisted the employer in the actual performance of physical therapy duties only if the employer had directly supervised the employe on the premises of the nursing home. The employer admittedly did not intend to do this. Although the employe should have investigated the law prior to reporting to work under these conditions, her instincts correctly told her that she should not continue to perform the work alone, and she quit doing it after only four hours. The employer received clear notice from her of her reasons for quitting, and made no attempt to rectify the illegal employment arrangement he had created. This illegal employment arrangement amounted to a real, substantial and unreasonable act on the part of the employer, and constituted good cause for the employe's quitting.

The Commission therefore finds that week 22 of 1984, the employe terminated her employment with good cause attributable to the employer, within the meaning of section 108.04(7)(b) of the statutes.

DECISION

The decision of the appeal tribunal is reversed. Accordingly, the employe is eligible for benefits if she is otherwise qualified.

Dated and mailed November 20, 1984
185 - CD5963  VL 1080.12

/s/ David A. Pearson, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ Hugh C. Henderson, Commissioner


cc: 
Thomas M. Kubasta, Attorney
Rudolph, Kubasta, Rathjen & Murach


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