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

SANDRA L KRAUSE, Employee

GREEN BAY NONWOVENS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03402528GB


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 for two years and eight months as a line worker for the employer, a manufacturer of nonwoven materials. Her last day of work was Thursday, April 3, 2003 (week 14).

As of the employee's last day of work, she was restricted to light duty due to a work-related injury. Prior to the end of her shift on the 3rd, she notified the employer's safety coordinator that she was unable to finish the workday because of stress and strain. She went home and contacted her doctor. Her doctor faxed a medical report to the employer indicating that the employee was totally incapacitated as of the 4th and that her next medical appointment would be April 15, 2003 (week 16).

On Tuesday, April 8, 2003 (week 15), the employer, through its insurance company, telephoned the employee's physician seeking a lessening of restrictions. Based upon this contact, the doctor modified the employee's restrictions and forwarded the modified restriction report to the employer. He also notified the employee of the modification and mailed the report to her. The report indicated that she was able to return to work on Wednesday, April 9, 2003 (week 15) with a sedentary work restriction prohibiting her from walking or standing but allowing her to sit one to three hours. She was not to use her feet for repetitive movement or performing any pushing or pulling. She was to avoid climbing but was allowed seldom bending, twisting and squatting. The medical release directed her to, as needed, change positions, sit with her feet elevated, sit in a recliner or lie down. Finally, these restrictions were for two to four hours per day, as tolerated. When the employee received the report, she did not make any attempts to contact the employer. She believed that the employer would contact her if it had work available within the severe limitations. She did not think the employer would have such work, because it did not have a couch or recliner at the business and, in June 2001, when she had a one-handed work restriction, the employer was unable to accommodate her.

Even though the employer received the report from the employee's doctor and argued it had work within those restrictions, the employer did not make any attempts to direct the employee to return to work.

On Tuesday, April 15, 2003 (week 16), the employee was treated by her doctor and her restrictions remained the same. The employee asked her doctor to fax the work restrictions to her employer. He did so. Again, the employer did not contact the employee to return to work.

On Monday, April 21, 2003 (week 17), the employee telephoned the safety coordinator. He transferred her to the employer's vice president of operations. The vice-president of operations accused the employee of falsifying her weight lifting abilities at time of hire and indicated that she was terminated because of her recent absences without notice to the employer.

The issue to be decided is whether the employee quit or was discharged and, ultimately, whether she is eligible for unemployment insurance benefits.

In Kline v. Laub & Horton, Inc., UI Dec. Hearing No. 00601736MW (LIRC May 16, 2000), the commission stated,

Where there is ambiguity regarding a separation from employment, when determining whether the separation was a quit or a discharge one looks for the party which initiated the ultimate separation.

In this case, the commission finds that the ultimate separation was initiated by the employer. It, through its agent, contacted the employee's doctor to have her restrictions changed and was notified of the change in restrictions. When the employer took this action and believed it had work within the severe restrictions, it did not contact the employee to notify her of such. It then decided to end the employment relationship when the employee contacted the employer twelve days later on April 21, 2003. While absenteeism without notice may be found to be so inconsistent with the employment relationship as to terminate it, the employee's absence was not. In particular, she originally notified the employer of her absence and made sure that the employer had her up to date medical documentation thereafter. Her belief that the employer would contact her if it had work within the restrictions was not unreasonable given the fact that the restrictions were severe, the employer initiated the modification of restrictions, had the restrictions and had no written requirement for notice in such a situation. For these reasons, the commission finds that the employee did not quit but was discharged.

Section 108.04(5) of the Wisconsin Statutes denies unemployment insurance benefits to a worker who is discharged for misconduct connected with the employment. Misconduct connected with employment means conduct showing an intentional and substantial disregard of the employer's interests or of the employee's job duties and obligations. Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249 (1941).

For the same reasons that the employee's failure to contact the employer was not behavior that severed the employment relationship, her failure to call in also does not constitute misconduct. There were no prior disciplines and she was never warned that her behavior jeopardized her job. None of her actions evinced a wilful or intentional disregard of the employer's interests or of the standards of conduct it had a right to expect.

The commission therefore finds that in week 17 of 2003, the employee did not voluntarily terminate her employment within the meaning of section 108.04(7)(a) of the statutes. The commission further finds that in week 17 of 2003, the employee was discharged and not for misconduct connected with her employment, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 17 of 2003, provided she is otherwise qualified.

Dated and mailed March 18, 2004
kraussa . urr : 150 : 8  MC 626

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

NOTE: The commission conferred with the administrative law judge about witness credibility and demeanor. The administrative law judge had no specific credibility recollection. The commission reached the above decision based upon the factual evidence presented at that hearing and because it concludes that the employer's actions severed the employment relationship.

cc: 
Attorney William B. Kulkoski
Attorney Thomas J. Parins, Jr.


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