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

GERALD F THIRION, Employee

AMERICAN SECURITY LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05401937GB


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 about five years as a guard for the employer, a security business. The employee's last day of work was May 3, 2005.

The issue to be decided is whether the employee quit for any reason that would permit the immediate payment of unemployment benefits.

The employee hurt his back and was given restrictions by his doctor that limited him to lifting no more than 25 pounds. The employee's latest medical restrictions were to be in place for at least six weeks after the date he saw his doctor, or April 15. The employee had been receiving treatment for his back and gave his supervisor a doctor's note every time the employee's restrictions were changed. Three days per week the employer sent the employee on a route that required him to lift bags of coins that weighed more than 25 pounds. In fact the bags of coins weighed approximately 50 pounds and the employee would be required to lift as many as 60 bags at one particular stop. The employee did have a co-worker but this co-worker was unable to lift all the bags of coin because the co-worker had been given a lifting restriction for a shoulder problem. The employee had, on prior occasions, informed the employer that his back hurt after he went on a route that required him to lift bags of coins.

After the employee finished his shift on May 3, his back was extremely sore. He was scheduled to work two additional days that week but because his back hurt, he called in those next two days. The following week the employee had vacation and during the week reflected upon the fact that the employer would not honor his medical restrictions. The employee was also concerned because he was unable to pass a physical examination required by the employer because he takes insulin on a daily basis because he suffers from diabetes. The employee complained that he should not have been driving, and for the most part, had been assigned to work with a co-worker who could drive. However, he had most recently been assigned to work with a co-worker who, in addition to the above mentioned lifting restrictions, for the last few weeks of the employee's employment would complain that he was unable to drive because of his foot problems. On May 13, 2005 (week 20) the employee turned in his equipment and quit his job.

The statutes provide 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 performed after the week of quitting equaling at least four times the weekly benefit rate, unless the quitting was with good cause attributable to the employer or was within some other statutory exception.

The employer in this case was aware of the employee's medical restrictions as the employee always furnished those restrictions to his supervisor. Further, he had informed the employer on several occasions that his back hurt after he lifted numerous bags weighing approximately 50 pounds each. The employer assigned him to work with a co-worker who was unable to lift the bags by himself because he was also on medical restrictions. The employer's actions in assigning a worker under medical restrictions work beyond those restrictions, and persisting in this activity despite the fact that on several occasions the employee reported to the employer that his back hurt were so unreasonable as to amount to good cause attributable to the employer for quitting.

The commission therefore finds that in week 20 of 2005, the employee quit his work with good cause attributable to the employer, within the meaning of Wis. Stat. § 108.04(7)(b).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 20 of 2005, if otherwise qualified.

Dated and mailed October 28, 2005
thirige . urr : 145 : 1 VL 1005.01  VL 1080.22

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

The commission discussed witness credibility and demeanor with the ALJ who held the hearing prior to reversing the ALJ's decision. The ALJ found the employee to be a straightforward witness. He characterized the witness as a "nice guy." The commission agrees with the ALJ's credibility assessment. The reason that the employee quit in this case was because the employer was assigning him work that exceeded medical restrictions he had furnished to the employer, and that he mentioned on several occasions to the employer that his back would hurt after he finished his shift. As such, the employee was not required to specifically inform the employer at the time he quit that he was quitting for this reason in order to establish that he quit with good cause attributable to the employer.


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uploaded 2005/10/31