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


MICHAEL D VANN, Employe

DOSKOCIL FOOD SERVICE CO LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98000282WT


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 the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked several years for the employer, a meat processing plant. The employe's last day of work was on or about November 26, 1997 (week 48). In the following week the employe's employment was terminated.

The employe worked in the employer's sanitation department. On January 19, 1996, the employe injured himself falling in the employer's parking lot. The employe slipped on ice and sprained his ankle. The problem was later diagnosed as complex regional pain syndrome (CRPS) reflex sympathetic dystrophy (RSD) in his ankle and lower right leg. The employe was off of work for a long time after that and attempted to resume work again in the sanitation department.

After being off of work for over a year, the employe returned to a light duty job program in August or September of 1997. The employe was last seen by Dr. Bender in November 1997. Dr. Bender referred the employe to Dr. Avery who then referred the employe to Dr. Backonja. Dr. Backonja was the doctor who diagnosed the employe as having CRPS/RSD in his ankle and leg.

On November 19, 1997, after working several months in the employer's light duty job program, the employer met with the employe about returning to work at his former job as a sanitation worker. At the meeting, the human resources director informed the employe that he was no longer available to participate in its transitional return to work program since the employe no longer had any restrictions which would require the employe staying on light or restricted duty. The employer reached this conclusion after it reviewed a report prepared by an independent medical examiner hired by its worker's compensation insurance carrier.

The employe was informed at this meeting that he should take the following week off to get in condition to resume his former sanitation position. At the close of the meeting, according to the employer, it was agreed that the employe would call in and let the employer know by Wednesday, November 26 whether there were any reasons that the employe could not report to work on Monday, December 1, 1997. The employe reported to this meeting in a wheelchair.

The employer did not hear from the employe until Tuesday, December 2, at which time the employe called in asking for his paycheck. The employer then transferred the employe's phone call to the human resource director. The employer explained to the employe that during the meeting on November 19, 1997, the employe failed to produce any medical evidence that showed he could not do his job and expressed concern that the employe was doctor shopping. The employer explained that had the employe called in and said he could not come to work on Monday, December 1 it would have dealt with the situation at the time. The employer further explained that had the employe produced the restrictions that he did at the hearing contained in Exhibit 1, UCB-474, dated February 9, 1998, the employer may have kept the employe enrolled in its transitional program.

The initial issue to be decided is whether the employe quit or was discharged. If the employe quit, a secondary issue is whether the employe's quitting was for any reason that would permit the immediate payment of unemployment benefits. If the employe was discharged, a secondary issue is whether the employe's discharge was for misconduct connected with that employment.

The ALJ believed that the employer's expectation that the employe return to work on December 1, 1997 was a pretext for setting the employe up for termination which occurred after he did not report for two consecutive days. The ALJ concluded that the employe had no choice in the matter and that the separation therefore must be deemed a discharge by the employer. The commission disagrees with this conclusion.

The commission believes that the employe voluntarily terminated his employment when he failed to contact the employer on or before Monday, December 1 indicating he would not be reporting to work. Furthermore, when the employe did contact the employer on Tuesday, December 2, the employe merely requested his paycheck, indicating a desire not to return to work. The commission is satisfied that this conduct is inconsistent with the continuation of the employment relationship. The employe was given time after the meeting to get into "condition" to report back to his former position. Although the employe personally believed he was in no condition to report to his former position, the employe failed to contact the employer about this concern on or before December 1 and when he finally contacted the employer he merely requested his paycheck. While one could argue that the employer should have presumed that the employe was in no condition to resume his former position, as he appeared at the November 19 meeting in a wheelchair, the employer did not possess any restrictions by any of the employe's treating physicians that indicated he could not resume his former job. Additionally, the employe failed to produce any medical evidence between November 19, 1997 and December 2, 1997 indicating that restrictions were still imposed on the employe. Based on all of these circumstances, the commission is satisfied that the employe voluntarily terminated his employment within the meaning of Wis. Stat. § 108.04(7)(a).

The next issue to be decided is whether the employe quit his employment for any reason which would permit benefit payment. The most relevant statutory exception in this case can be found in Wis. Stat. § 108.04(7)(c). Wis. Stat. § 108.04(7)(c) permits an employe to voluntarily terminate employment in the case of health problems which make continued employment impossible, where the employe has pursued and exhausted reasonable alternatives short of quitting, but only where the employe remains generally able to work and available for work after quitting.

Applying the law to the facts at hand, the commission concludes that the employe failed to establish that he reasonably exhausted alternatives short of quitting. While the employe personally believed he could not return to his former job as a sanitation worker, appearing at the November 19, 1997 meeting in a wheelchair is insufficient medical evidence he could not physically perform his former job duties. While the commission recognizes the credibility of Exhibit 1, the UCB-474 medical form, the report was not dated until well after the employment separation occurred.

The issue therefore is not whether the employe could physically perform his job as a sanitation worker, since the record contains a medical opinion that the employe could not. The issue rather is whether the employe exhausted all reasonable alternatives short of quitting to remain eligible under Wis. Stat. § 108.04(7)(c). The commission believes the employe failed to pursue all reasonable alternatives short of quitting when he failed to produce a current medical report updating the employer as to what his exact restrictions were after November 19 and when he declined to discuss his return with the employer on December 2.

The commission therefore finds that in week 49 of 1997, the employe voluntarily terminated his employment because he was physically unable to do his work but that he failed to exhaust reasonable alternatives short of quitting, pursuant to Wis. Stat. § 108.04(7)(c).

The commission further finds that the employe was paid benefits amounting to $1243.00 for which he is not eligible and to which he is not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), the employe is required to repay such sum to the Unemployment Reserve Fund.

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c), because although the overpayment did not result from the fault of the employe as provided in Wis. Stat. § 108.04(13)(f), the overpayment was not the result of a department error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is ineligible for benefits beginning in week 49 of 1997, and until four weeks have elapsed since the end of the week of quitting and he has earned wages in covered employment performed after the week of quitting equaling at least four times his weekly benefit rate which would have been paid had the quitting not occurred. The employe is required to repay the sum of $1243.00 to the Unemployment Reserve Fund.

Dated and mailed: July 23, 1998
vannmic.urr : 135 : 1  VL 1023.10  VL 1023.20

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission conferred with the ALJ as to his credibility assessment and impressions of those who testified. The commission however believes that the employe, not the employer, was the moving party in the separation. The commission believes that the employe's failure to contact the employer on or before Monday, December 1, and his failure to produce a medical excuse with updated physical restrictions constituted conduct inconsistent with the continuation of his employment relationship. Additionally, the commission does not believe that the employe exhausted all reasonable alternatives short of quitting pursuant to Wis. Stat. § 108.04(7)(c) since he failed to produce any medical evidence anytime after November 19, 1997, to the employer, that would support his personal opinion that he was physically unable to perform his job as a sanitation worker.

cc: DOSKOCIL COMP INC
1 ROCK RIVER RD
JEFFERSON WI 53549

GEOFF HERMSEN
RETAIL SPECIALISTS
11138 W GREENFIELD
MILWAUKEE WI 53214


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