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

ROGER E BEACH, Employee

CABELAS WHOLESALE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05000778MD


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. On May 19, 2005, the commission ordered the taking of additional evidence before an administrative law judge acting on behalf of the commission, on the merits of the case. The hearing was conducted on August 17, 2005 and the matter was returned to the commission for disposition.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ at the original hearing and the ALJ at the remand hearing. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

In early November 2004, the employee completed an application and attended a paid orientation and strength test with the employer, Cabela's Wholesale Inc. The week of issue was determined to be the calendar week ending November 13, 2004 (week 46). At the paid orientation, the employee was offered a position as an order filler, paying $7.50 per hour. The employee declined the position because he was having physical difficulties with the lifting and standing requirements of the position. In particular, the employee previously sustained an injury to his rotator cuff, which affected his ability to remove boxes from shelves. The employee mentioned his shoulder problem, prior knee injury and the fact that he thought the work was monotonous when he declined it. Departmental records reflect that the employee did not seek payment of unemployment insurance benefits until the calendar week ending February 5, 2005 (week 6).

At the remand hearing, the employee offered a certified medical form completed by a physician who treated him on March 2, 2005 (week 10). The doctor opined that in November 2004, the claimant had a small rotator cuff tear or rotator cuff tendonitis and that the employee would not be able to perform box loading work as of November 7, 2004 (week 46), the week of the original determination.

A certified report on labor market conditions was generated from the Wisconsin Conditions of Employment Database (COED) and was received into evidence. The COED report reflects that a rate of pay of $7.47 an hour was substantially less favorable for similar types of work. The employee testified that his commute to the employer's business exceeded the customary travel distance set forth on the COED report.

The issue to be decided is whether the employee's refusal of the order filling work with the employer constituted a quitting and, if so, whether his quitting fell within any exception to allow for immediate payment of unemployment insurance benefits.

The employee was paid for his orientation. He could have maintained this employment relationship with the employer by accepting the order filling work. His failure to do so constituted a quitting.

Wis. Stat. § 108.04(7)(e) provides, in relevant part and with footnotes added, that the general quit disqualification does not apply:

. . . if the department determines that the employee accepted work which the employee could have failed to accept with good cause under sub. (8)  (1)  and terminated such work with the same good cause and within the first 10 weeks after starting the work, or that the employee accepted work which the employee could have refused under under sub. (9)  (2)  and terminated such work with the same good cause and within the first 10 weeks after starting the work. For purposes of this paragraph, an employee has the same good cause for voluntarily terminating work if the employee could have failed to accept the work under sub. (8)(d) when it was offered, regardless of the reason articulated by the employee for the termination.

In this case, the employee made a good faith effort to determine if the employer's work was suitable for him. After performing a sampling of the work, he determined it was too physically demanding. Further, even though the doctor who completed the medical form did not treat the employee as of the time of the quitting, his opinion supports the employee's testimony regarding his medical condition and physical abilities as of November 2004. In Wegner v. Kolbe Bros. Lumber Co. Inc., UI Dec. Hearing No. 02201804WU (LIRC June 20, 2003), the commission found a quit 10 weeks due to personal good cause where the employee established his physical inability to perform the work by his testimony and the observations of the employer's foremen. In addition to the physical requirements of the work, the evidence is that the travel distance of the order filling work was outside the customary range for work paying $7.50 an hour. For these reasons, the commission finds that the employee's quitting falls within the exception found at Wis. Stat. § 108.04(7)(e).

As a final note under this statutory exception, if the employer is subject to the contribution requirements of the Wisconsin unemployment compensation law, any benefits payable to the employer based on the employee's work for the employer will be charged to the fund's balancing account, not the employer's account. (3)

The commission therefore finds that the employee accepted work in week 46 of 2004 that could have been refused with good cause, and that the employee voluntarily terminated that employment in week 46 of 2004 with the same good cause and within ten weeks after starting work, within the meaning of Wis. Stat. § 108.04(7)(e).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits, if otherwise qualified. Given the notations on the medical form received as an exhibit by the employee, the commission remands for investigation the issue of the employee's ability to work and availability to work as of the week he filed a benefit claim, week 6 of 2005.

Dated and mailed October 26, 2005
beachro . urr : 150 : 1 VL 1034

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

 

NOTE: The commission did not confer with the administrative law judge prior to reversing the appeal tribunal decision. In particular, the reversal is based upon a differing legal conclusion reached after additional evidence was obtained at the remand hearing and which was not before the administrative law judge originally.

 

cc: Cabelas Wholesale, Inc. (Pr Du Chein, Wisconsin)



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Footnotes:

(1)( Back ) Section 108.04(8)(a) of the Wisconsin statutes denies benefits if an employee fails, without good cause, to accept suitable work when offered.

(2)( Back ) Section 108.04(9)(b) of the Wisconsin statutes provides that benefits shall not be denied under this chapter to any otherwise eligible individual for refusing to accept new work if the wages, hours (including arrangement and number) or other conditions of the work offered are substantially less favorable to the individual than those prevailing for similar work in the locality.

(3)( Back ) See Wis. Stat. 108.04(7)(h).

 


uploaded 2005/10/31