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

KIMBERLY M STEFFY, Employee

COLE VISION CORP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03609644WK


On October 1, 2003, the Department of Workforce Development (department) issued an initial determination finding that the employee quit but not for any reason allowing payment of benefits. The employee timely appealed. A hearing was held before an administrative law judge (ALJ) on November 3, 2003. After conducting the hearing, ALJ John Winderl issued an appeal tribunal decision on November 11, 2003, affirming the department's initial determination finding that the employee quit but not for any reason allowing payment of benefits. The employee timely petitioned the Labor and Industry Review Commission (commission) for review of the appeal tribunal decision.

On March 26, 2004, the commission, on its own motion, ordered that testimony be taken before an ALJ, acting on behalf of the commission, with respect to a completed UCB-474 medical form and labor market evidence. The remand hearing was held on June 14, 2004, before ALJ William McKeown.

Based on the applicable law, records and evidence adduced from each hearing in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked approximately three years as a manager for the employer, an optical business. The employee's last day of work was September 13, 2003 (week 37).

Upon returning from a medical disability leave in January of 2003, the pressures of working as a store manager caused the employee to agree to a demotion as a sales associate. However, before the employee even began working as a regular sales clerk, the employee submitted her resignation on September 13, 2003 (week 37) indicating that her last day of work would be September 27, 2003 (week 39). However, two days later on September 15, 2003, the employee had second thoughts about quitting and sought to rescind her resignation. The regional manager informed the employee that her resignation had been accepted. It is therefore undisputed that the employee quit.

The remaining issue is whether the employee's quitting was for any reason permitting the payment of benefits. The most relevant statutory exception in this instance can be found at Wis. Stat. § 108.04(7)(c). This statutory exception permits an employee to voluntarily terminate employment in the case of health problems which make continued employment with the employer impossible, but only where the employee has pursued and exhausted all reasonable alternatives short of quitting, and only where the employee remains generally able to work and available for work after the quitting.

The medical evidence in the record supports a finding that the employee suffers from post-traumatic syndrome disorder and recurrent major depression. As a result of these mental health conditions, the employee made several accommodation requests upon returning to work in January of 2003. The employee requested shelves and the ability to date employer forms in a certain way in an effort to better help organize her paper work and job responsibilities. The employee also indicated that she requested faxed correspondence be sent to her after detailed voicemail instructions were left by her manager. The employer failed to comply with the employee's minimal accommodation requests.

The UCB-474 medical form prepared by the employee's clinical psychologist, Cassandra Braam, Ph.D., explained that the employee's mental conditions affected her "energy levels, sleeping, self esteem and led to learned helplessness, feeling guilty, difficulty concentrating and difficulty trusting and being victimized." Dr. Braam opined that when the employee's symptoms were present she had "difficulty consistently performing at the levels her bosses expected from her and that as noted by the employee's own report, her boss knew about her problems and used an intimidating/confusing management style that exacerbated her symptoms." (1)

Therefore, based on this medical evidence, the commission is satisfied that the record supports the legal conclusion that the employee was unable to perform her work for the employer either as a sales manager or a sales clerk within the meaning of Wis. Stat. § 108.04(7)(c). The employee returned from medical leave in January 2003 with specific accommodation requests that went unmet despite the employee's continued requests. Although the requests were minimal in nature, the employer's failures and/or omissions exacerbated the employee's mental health condition to the point she could no longer work for the employer. Furthermore, the employee could reasonably conclude that the employer would not meet her accommodation requests even if she had worked as a sales associate at another store location.

Testifying at the remand hearing held on June 14, 2004, the labor market analyst opined that based on the employee's uncontrollable restrictions she was available for 21 percent of all suitable work. The labor market expert also opined that if the 30- hour per week restriction was not considered but just the "stress based positions" the employee would be available for about 75 percent of all suitable work. Finally, the labor market analyst opined that if the employee was able and available for 35 hours per week she was available for 100 percent of all suitable work. The commission is therefore satisfied that the employee remains generally able and available for suitable work in her general labor market.

Therefore, the commission finds that in week 37 of 2003, the employee terminated work with the employer because the employee was unable to do that work and had no reasonable alternative, within the meaning of Wis. Stat. § 108.04(7)(c), but that the employee was able to work and available for work on the general labor market.

DECISION

The appeal tribunal decision is reversed. Accordingly, the employee is eligible for benefits beginning in week 37 of 2003, if she remains otherwise eligible.

Dated and mailed August 17, 2004
steffki . urr : 135 : 2  VL 1007.20   AA 105   PC 714.10

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The commission did not confer with the ALJ because it did not reverse his decision on the basis of witness credibility or demeanor. Rather, the commission reaches a different legal conclusion based upon the medical and labor evidence adduced at the remand hearing.

Finally, the commission notes that pursuant to Wis. Stat. § 108.04(7)(h), the department shall charge to the fund's balancing account benefits paid to the employee that are otherwise chargeable to the employer's account because the employee voluntarily terminated her employment within the meaning of Wis. Stat. § 108.04(7)(c).

cc: Cole Vision Corp., New Berlin, WI 53151



[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]


 

Footnotes:

(1)( Back ) Dr. Braam checked the box that indicated the employee could perform specific work for the employer as sales manager as of September 15, 2003 and then subsequently checked the box that stated as of September 15, 2003 the employee could not work due to medical conditions reported on the form. However, the doctor's narrative that elaborates her opinion resolves any inconsistency between the checks made in the boxes required on the form. See Gary A. Labonte v. Maysteel Corp. Menomonee Falls & Connecticut Indemnity Co., WC Claim No. 1999-006958, (LIRC February 10, 2000), in which the commission held that the courts as well as the commission "routinely reject the so-called wrong box theory and instead focus on which legal causative test applies based on the medical record and not whether the medical expert identified the correct legal test."

 


uploaded 2004/08/23