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

MYRON V KRUEGER, Employee

G  G  BARNETT TRANSPORT INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04006519BD


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, except that it makes the following modifications:

1. In order to correct an error, the second sentence of the third paragraph of the FINDINGS OF FACT and CONCLUSIONS OF LAW section is modified to read:

"The employee had suffered a back injury in 2003."

2. The final two sentences of the third paragraph of the FINDINGS OF FACT and CONCLUSIONS OF LAW section are deleted because they contain certain inaccuracies. The correct chronology of events is recited in the Memorandum Opinion, below.

3. The words "with certain restrictions" are added to the end of the fourth paragraph of the FINDINGS OF FACT and CONCLUSIONS OF LAW section for purposes of clarification.

4. The final phrase in the fifth paragraph of the FINDINGS OF FACT and CONCLUSIONS OF LAW section, after the date, is deleted for purposes of clarification.

5. The seventh paragraph of the FINDINGS OF FACT and CONCLUSIONS OF LAW section is modified to read as follows, for purposes of clarification:

"On December 3, 2004, the employee initiated a claim for benefits beginning in week 48 of 2004, the week ending November 27, 2004."

6. The ninth and tenth paragraphs of the FINDINGS OF FACT and CONCLUSIONS OF LAW section are deleted and the following substituted, in order to more accurately reflect the commission's decision rationale:

"The employee's efforts to keep the employer apprised of his status were sufficient and his actions in this regard were not inconsistent with the continuation of the employment relationship. The separation which occurred in week 44 of 2004 was initiated by the employer and constituted a discharge."

7. The eleventh and final paragraph of the FINDINGS OF FACT and CONCLUSIONS OF LAW section is modified to read as follows to more accurately the commission's decision rationale:

"In week 37 of 2004, the employee's employment was suspended by the employee because the employee was unable to do, or unavailable for, suitable work otherwise available with the employer, within the meaning of Wis. Stat. § 108.04(1)(b)1.; in week 44 of 2004, the employee did not voluntarily terminate work with the employer within the meaning of Wis. Stat. § 108.04(7)(a), but was discharged, within the meaning of Wis. Stat. § 108.04(5), and this discharge was not for misconduct connected with the employee's work; and, from weeks 44 through 49 of 2004, the employee was not able and available for suitable work in his labor market within the meaning of Wis. Stat. § 108.04(2)(a) and Wis. Adm. Code § DWD 128.01(2), but, beginning in week 50 of 2004, he did satisfy these able and available requirements."

DECISION

The decision of the administrative law judge, as modified, is affirmed. Accordingly, the employee is ineligible for benefits from weeks 37 through 49 of 2004. The employee is eligible for benefits beginning in week 50 of 2004, if otherwise qualified.

Dated and mailed May 6, 2005
kruegmy . umd : 115 : 1  MC 626  MC 605.05  VL 1007.05

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION


The employee was hired by the employer as an over-the-road truck driver on October 20, 2000. He suffered a work-related injury on January 17, 2003; worked despite the injury until February 2, 2003; and was then on medical leave until April 22, 2003. The employee was again on medical leave, due to the same injury, from February 12, 2004, until June 19, 2004, and had related back surgery on April 20, 2004. The employee returned to part-time light duty work from June 19 to July 19, 2004, and full-time light duty work from July 19 to September 9, 2004, consistent with his medical restrictions.

On September 10, 2004, the employee, who was claiming that he had suffered another work-related injury on July 30, 2004, presented the employer with a document from his treating physician (exhibit #1) stating that he was recommending that the employee be off work until his "next visit" due to back pain resulting from a claimed new injury. The employee testified that, when he delivered this document to Joseph Sinklair, the employer's safety manager, he told Sinklair that his physician did not want him to return to work until an MRI could be administered and interpreted. The employer admitted in its statement to the department (p. 3 of exhibit #4) that, during this contact, the employee "told us he had to wait to have a MRI."

Also on September 10, 2004, the employee filed a workers compensation claim relating to his alleged work-related injury of July 30, 2004. On October 6, 2004, the employer learned that this claim had been denied.

On October 21 and 22, 2004, the employee's wife called the employer and left voice mail messages for Renee Schmidt, the employer's payroll coordinator, requesting that a check be issued to the employee for the amount of vacation pay he had accrued to date. Schmidt did not testify at the hearing. Sinklair testified that he had "heard the voice mail that the employee's wife left on Ms. Schmidt's voice mail system on the 22nd. She requested vacation pay. There was never any mention of scheduling an MRI." The employee testified that he was present when his wife left the voice mail messages for Schmidt, and his wife stated in these messages that his MRI had been scheduled. The employee's wife testified that, in all three of the messages she left for Schmidt, she mentioned that, since the employee's workers compensation claim had been denied, he needed his vacation pay to help defray the cost of the MRI. She also testified that, in the voice mail message she left on October 22, she mentioned that the employee's MRI was scheduled for November.

The employer issued the employee's vacation pay check on October 29, 2004, and, because it was the employer's practice to "pay employees their vacation pay after they have resigned," Sinklair concluded that the employee had quit as of October 29, 2004. The employer did not communicate this conclusion to the employee or to his union.

The employee had an MRI on November 11, 2004. Although, in his statement to the department (exhibit #8), he represents that his wife called Schmidt on November 12, 2004, "and told her I needed to talk about insurance and about when I was gong to the doctor on December 2, 2004," neither he nor his wife mentioned such a contact in their hearing testimony, and the phone records they offered at the hearing (exhibit #10) do not cover the November 11/12 time period.

After the November 11 MRI, the employee was not able to get an appointment to see his treating physician until December 2, 2004. On that date, he received a return-to-work slip from his physician (exhibit #9), which he presented to Sinklair that day. Sinklair told the employee that he had concluded on October 29 that the employee had quit his employment, and that he could apply for re-employment if he wished.

As the commission noted in Wilbern v. Postal Products Unlimited, Inc., UI Hearing No. 98606776 MW (LIRC Jan. 27, 1999), as a general principle, an employee who does not exercise reasonable diligence in communicating his status to the employer while on an indefinite leave, can be found to have engaged in conduct inconsistent with an intent to maintain the employment relationship. The appropriate question then, is not, as the administrative law judge (ALJ) framed it, whether the employee submitted his resignation to the employer, but rather whether the employee engaged in conduct inconsistent with the continuation of the employment relationship by failing to be reasonably diligent in communicating his status to the employer during his indefinite leave. See, e.g., Sawyer v. Scanhome, Ltd., UI Hearing No. 04403391GB (LIRC Dec. 17, 2004). The commission concludes that he did not.

The ALJ failed to find whether the employee's wife mentioned, during her October 21/22 contacts with the employer, that the employee was scheduled for an MRI. The commission concludes, however, that the evidence of record, including in particular the testimony of the employee and his wife, supports such a finding. Sinklair testified that he listened to the voice mail left by the employee's wife on October 22 which did not mention that an MRI had been scheduled. However, the record, including the testimony of the employee and his wife, and related phone records, indicates that calls were placed on both October 21 and 22. Sinklair attempts, in the employer's petition for commission review, to have the commission consider a transcript he prepared of the October 22 voice mail. First, the commission may not consider this transcript because it is not part of the hearing record, and, since the tape of the voice mail necessarily existed prior to the date of hearing, there would be no reason to afford the employer further opportunity for hearing based on newly discovered evidence. Moreover, again, in his petition, Sinklair refers to the October 22 voice mail, but the record supports a finding that calls were made and voice mail messages were left by the employee's wife on both October 21 and 22.

However, even if the employee's wife did not mention the employee's upcoming MRI in these voice mails, the employer admits that it was aware on September 10 that the employee's physician had taken him off work until an MRI could be administered and interpreted, and that no time line was stated by the employee or his physician or the employer within which this was expected to occur. Although the employee could certainly have done a better job keeping in touch with the employer, there was little to report other than the fact that the MRI was scheduled, and that he had been released to return to work effective December 6, 2004, both of which the employee promptly reported.

It is disingenuous for the employer to assert that it interpreted the employee's request for his vacation pay as a statement of his intent to resign. The employer does not assert that a resignation is the only circumstance which triggers the employer's disbursement of vacation pay. Instead, Sinklair's testimony is that it was "customary for the employer to pay employees their vacation pay after they have resigned." Moreover, if the employer was uncertain of the employee's intent, it could have contacted him to inquire, but it did not do so.

The commission concludes that the employer discharged the employee on October 29, but this discharge was not for misconduct. Although the employer references its rule that three no call/no show absences constitutes a job abandonment, or, apparently, grounds for termination, the employer was on notice that the employee was on medical leave and this rule would not apply to the employee's situation as a result. The employer also makes passing reference in its statement to the department that the employee was not even at work on the date he claimed a new work-related injury, i.e., July 30, 2004. However, the filing of an allegedly false claim for workers compensation was not cited by the employer as a basis for the separation, and, in fact, Sinklair testified that, on July 30, 2004, the employee "was working in the morning at the warehouse."

The record, as a result, supports a conclusion that, between September 10 and October 28, 2004, the employee was on an indefinite, involuntary suspension due to his inability to work because of a medical condition, and was ineligible for benefits as a result by operation of Wis. Stat. § 108.04(1)(b)1.; that the employee was discharged on October 29, 2004, but not for misconduct, but was unable to work because of a medical condition between October 29 and December 5, 2004, and was ineligible for benefits during this time period as a result; and that, as of December 6, 2004, with his medical restrictions, the employee was able and available for 70% of suitable work in his labor market (see exhibit #7) and was eligible for benefits as a result, if otherwise qualified.


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