SANDRA L MORROW, Employee

LINDENGROVE INC, Employer

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:

The employee worked almost two and one-half years as a nurse's aide for the employer, a nursing home.

The employee quit effective March 26, 2004 (week 13). She indicated in her letter of resignation that she was leaving in order to move to Illinois. She later asserted that she resigned in order to care for her ill mother.

The issue is whether the employee's quitting satisfies any exception to the quit disqualification.

The employee's mother became ill on Thursday, November 27, 2003, and the employee made the six-hour drive to her mother's hospital in St. Louis that Thursday and returned to work the following Tuesday. The employee's mother has been in and out of the hospital ever since.

The employee moved to Illinois in April of 2004, and located in Ava, Illinois, a two-hour drive from Carrollton, Illinois, where her mother lives. Carrollton is one hour north of St. Louis.

The employee has more than one sister.

The employee drives to Carrollton every week and stays with her mother for two or three days. The employee only stays with her mother for two or three days at a time because her mother is very independent and likes living by herself.

The employee moved to Illinois because her mother wanted the employee to be closer to her.

Wisconsin Statutes § 108.04(7)(c) provides an exception to the quit disqualification if an employee "has no reasonable alternative because . . . of the health of a member of . . . her immediate family. . ."  There is no other exception to the quit disqualification arguably applicable here.

It is the employee's burden to prove that the requirements of Wis. Stat. § 108.04(7)(c) have been met.

The commission has generally limited application of this section to those situations in which the employee proves that the family member requires medical care or assistance with the activities of daily living for an extended period of time due to a health condition, and the employee is the only one available to provide this care. See, Llambi v. Department of Corrections, UI Hearing No. 98002528MD (LIRC Sept. 16, 1998); Pellicier v. One Hour Martinizing, UI Hearing No. 94606141MW (LIRC Feb. 17, 1995); Carter v. Advance Products Corp., UI Hearing No. 00000918MD (LIRC May 10, 2000).

The employee has not satisfied her burden of proof here. Although she testified that her mother had been in and out of the hospital, she did not establish that her mother required care of any kind when she was at home. In addition, the employee failed to prove that, if such care were required, she was the only one available to provide it. Obviously, since she only spends two to three days a week with her mother, if such care is required, someone else is providing it the other four or five days of the week. Finally, although the employee moved to Illinois, she lives two hours away from her mother. The clear implication is that she moved to Illinois in order to be near her mother but not to care for her. This is reinforced by her testimony that she moved to Illinois because her mother asked her to do so in order to be closer to her.

The commission therefore concludes that, in week 13 of 2004, the employee quit her employment with the employer, but not with good cause attributable thereto or for any other reason constituting an exception to the quit disqualification of Wis. Stat. § 108.04(7)(a).

The commission further finds that the employee was paid benefits in the amount of $2,230 for which the employee was not eligible and to which the employee was not entitled, within the meaning of Wis. Stat. § 108.03(1), and that waiver of this overpayment is not merited since the initial award of benefits was not based on department error but instead on a differing interpretation of the applicable law.

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 13 of 2004 and until four weeks have elapsed since the end of the week of quitting and she has earned wages in covered employment performed after the week of quitting equaling at least four times her weekly benefit rate which would have been paid had the quitting not occurred. The employee is required to repay the sum of $2,230 to the Unemployment Reserve Fund.

Dated and mailed September 28, 2004
morrosa . urr : 115 : 1    VL 1023.13

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

Robert Glaser, Commissioner

NOTE: The commission did not confer with the administrative law judge before reversing his decision, because its reversal was not based upon a differing view as to the credibility of witnesses, but instead upon a differing conclusion as to what the hearing record in fact established and upon a differing interpretation of the relevant law.

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