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

RUSSEL R KLUTTERMANN, Employee

DETJENS COUNTRY CUTTING INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05000009JF


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 about 10 years as a meat cutter and sausage maker for the employer, a slaughter house, meat processor and retail sales business. His last day of work was November 17, 2004 (week 47).

The issue to be decided is whether the employee quit or was discharged. If the employee quit, it must be determined whether he quit for a reason that would permit immediate benefit payment. If he was discharged, it must be determined whether his discharge was for misconduct connected with his work.

Some time prior to his last day of work, the employee stabbed himself at work and was hospitalized overnight. He was given stitches for a stab wound to his stomach. After the first accident, the employee became concerned because he felt he was losing his memory. On November 17, the employee cut himself again. He did not seek medical treatment for that wound because it was not serious enough. However, on November 17, the employee saw a general practitioner who tested his sight, balance and reflexes. The employee's doctor suggested that he get a CAT scan and see a psychiatrist. After the employee's last day of work, the employer attempted to contact the employee on several occasions but the employee avoided the employer. About ten days after the employee's last day of work, the employer's co-owner went to the employee's house and was able to speak to the employee. The owner asked the employee if he knew what was wrong as far as his health. The employee stated he did not know what was wrong with him, or when he could return to work. The employee was unable to work, and the employer did not suggest any reasonable alternatives to allow the employee to remain employed. The employer sent the employee a letter, on December 3, 2004, indicating that he was discharged because of his attendance.

The employee informed the employer, on about November 27, that he was unable to work for the foreseeable future. The employee had avoided some of the employer's attempts to contact him. The employer's December 3, 2004, letter simply formalized the ending of the employment relationship. As such, the commission concludes that the employee quit his employment with the employer

The second issue to be decided is whether the employee's quitting was for any reason that would permit the immediate payment of unemployment benefits.

Wis. Stat. § 108.04(7)(a), provides that if an employee terminates employment, benefit eligibility shall be suspended until four weeks have elapsed since the week of quitting, and the employee has earned wages in covered employment equaling at least four times the employee's weekly benefit rate, unless the termination was with good cause attributable to the employer or was within some other statutory exception. Wis. Stat. § 108.04(7)(c) provides as follows:

Paragraph (a) shall not apply if the department determines that the employee terminated his or her work but had no reasonable alternative because the employee was unable to do his or her work or because of the health of a member of his or her immediate family; but if the department determines that the employee is unable to work or unavailable for work, the employee is ineligible to receive benefits while such inability or unavailability continues.

The employee was unable to work because of his medical condition. The employee informed the employer of this on about November 27, 2004 (week 48). The employer was unable to suggest any alternatives to quitting. Therefore the employee had no reasonable alternative to quitting because he could not perform his work for the employer.

The third issue to be decided is whether the employee was able to work and available for work in the employee's labor market beginning in week 48 of 2004.

The statutes provide that a claimant is not eligible for benefits unless able to work and available for work. The Wisconsin Administrative Code implements the statutes and provides that a claimant will not be considered able and available if he or she, without good cause, restricts him or herself to less than 50 percent of the full-time opportunities for suitable work in the labor market, if his or her physical condition or uncontrollable circumstances limit him or her to less than 15 percent of the opportunities for suitable work in the labor market, or if he or she, without good cause, fails to participate in an eligibility review interview.

The employee's UCB-474 medical report indicates that the employee was not, as of November 17 and until at least December 17, 2004, able to work at all. As such, the employee was not, at the time he quit, able to work. The employee asserts that his doctor released him to work on about December 6, 2004. The employee did not bring evidence of any doctor's release to the hearing. Further, any such release would be in conflict with the employee's certified medical report that indicates that the employee was unable to work until at least December 17.

The commission further finds that in week 48 of 2004, the employee terminated work with the employer because the employee was unable to do that work and did not have a reasonable alternative to quitting, within the meaning of Wis. Stat. § 108.04(7)(c), and that the employee was not able to work and available for work on the general labor market as of that week, within the meaning of that section.

DECISION

The decision of the administrative law judge is modified and as modified is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 48 of 2004 and until he is again able to work and available for work.

If the employee provides information to the department demonstrating that at some time after week 51 of 2004, he was able to work, the department may determine that he is able to work. If that is the case and the employer is subject to the contribution requirements of the Wisconsin unemployment insurance law, any benefits payable to the employee based on work performed for the employer prior to the quitting will be charged to the fund's balancing account.

Dated and mailed April 15, 2005
kluttru . urr : 145 : 1   VL 1023.10  AA 105

/s/ James T. Flynn, Chairman

David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


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