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

CARL E GAHART, Employee

J B HUNT TRANSPORT INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04610846WK


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:

Delete the NOTE on the final page of the decision.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is eligible for benefits, if otherwise qualified.

Dated and mailed May 20, 2005
gaharca . usd : 145 : 1  AA 130

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

Robert Glaser, Commissioner

MEMORANDUM OPINION

In its petition for commission review the employer asserts that the employer would like to appeal the ALJ's decision. The employer asserts that the employee was terminated for four reasons. The employer argues that the employee no longer met the federally mandated requirements of a commercial driver. The employee had not been with the employer long enough to qualify for a medical leave of absence. The employer is asserting that the employee was either medically unable to work or that he could no longer be licensed as a commercial driver. If the employer suspended the employee's employment because he was medically unable to work, the employee is eligible for benefits if he is able to work and available for suitable work in his labor market. While the employee may not have been able to drive for most trucking companies, it was not demonstrated that the employee was not able to work and available for other suitable work that did not require the ability to drive a truck.

Whether the employee was eligible for a leave of absence or not, the employee's employment was suspended because he passed out at work, and the employer's doctor would not allow him to return to work unless he took a stress test so the employer's doctor could determine whether to certify him. The employer argues that his license was suspended because of his fault as he did nothing to attempt to become medically recertified. The employee testified that he retained his license and the employer did not appear at the hearing so the employee's testimony in this regard was undisputed. Even if the commission concluded that the employee lost his license, the loss of license was not the fault of the employee. It was not the employee's fault that he had a heart condition. The employer's doctor would not consider recertifying him unless he took a stress test that cost $5,200. The employee testified that he did not have this much money. This is not as clear cut as a situation in which a worker is required to pay a fine in order to keep his or her license. In this case, the employee might have paid over $5,000 for the test and then still be considered medically unfit to work. As such, the commission cannot conclude that the employee's failure to schedule and pay for this medical testing resulted in a loss of license because of his fault.

Finally, the employer asserts that it is required to consider the safety of the employee and others and cannot allow a person who is not medically fit to drive. While the employer cannot allow an unfit driver to drive, it is not the fault of the employee that he suffered from a heart condition. The fact that the employer had a good reason to lay him off does not necessarily mean he is not eligible for benefits. If he was unable to drive as the result of the heart condition but was still able to work in his labor market, the employee is eligible for benefits.

cc:
J B Hunt Transport, Inc. (Oconomowoc, WI)
J B Hunt (Lowell, AR)



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uploaded 2005/05/23