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


THEODORE J MERCE, Employe

CITY OF WAUSAU, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 97003566WU


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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own. The commission also determines that further hearing is not warranted.

DECISION

The employe's request for further hearing is denied and the appeal tribunal decision is affirmed. Accordingly, the employe is ineligible for benefits beginning in week 24 of 1997, and until four weeks have elapsed since the end of the week of quitting and he has earned wages in covered employment performed after the week of quitting equaling at least four times the employe's weekly benefit rate which would have been paid had the quitting not occurred.

Dated and mailed: January 6, 1998
merceth.usd : 105 : 1  PC 734  PC 740

/s/ Pamela I. Anderson, Chairman

/s/ David B. Falstad, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The employe's representative asks for reversal of the appeal tribunal decision or, in the alternative, further hearing. The commission believes the appeal tribunal decision is properly affirmed, however, and that further hearing is unwarranted.

The evidence in the hearing record is sufficient to establish that the employe had been released to work, that the employer was willing to accommodate the employe's work restrictions, and that the employe failed to return to work. The employe's refusal to return to work under these circumstances was essentially an abandonment of the employment by the employe.

The commission also believes further hearing is unwarranted, in that the information the employe's representative includes in the petition for review is not "newly discovered" under the criteria of Maden v. Johnson, 61 Wis. 2d 375, 384, 212 N.W.2d 585 (1973). In particular, the parties seeking to present the information in question must not have been negligent in seeking to discover it. In this case, the issue is the employe's ability to work in June of 1997. The employe had full opportunity to obtain and present his own doctor's evidence as to his (the employe's) restrictions as of that time.

cc: ATTORNEY JAMES B CONNELL
CROOKS LOW & CONNELL SC

THERESE M FREIBERG
ASSISTANT CITY ATTORNEY


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