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

FRANCIS V GADZIK, Employee

CENTER FOR COMPREHENSIVE SERVICES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04001881MD


On April 22, 2005, the commission issued a decision in the above-captioned matter, holding that the employee had quit his employment with the employer due to medical necessity under Wis. Stat. § 108.04(7)(c), but that he was not able to work within the meaning of that statute and Wis. Admin. Code § DWD 128.01(2)(b). The employee appealed the commission's decision to state circuit court and, on December 16, 2005, the circuit court set aside the commission's decision and remanded the matter for redetermination. On May 30, 2006, additional hearing was held before a Department of Workforce Development administrative law judge, acting on the commission's behalf. The matter is again before the commission, and now is ready for disposition.

Based upon all the evidence, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for more than four months as a caregiver for the employer, which operates a community-based residential facility for individuals with acquired brain injuries. His last day of work was February 5, 2004 (week 6) and his last day of pay status was February 13, 2004 (week 7).

On January 28, 2004, the employee's immediate supervisor gave him a written warning for several performance issues, the most important of which concerned errors in dispensing of medications to residents and documenting it. The employee responded by submitting a two-week notice of resignation on January 30. The notice stated that his supervisor had asked for his resignation and listed several physical and medical impediments to performing the job, including back problems, a vision problem and memory lapses. After receiving the resignation, the employer's human resources director telephoned the employee, asked whether he really wanted to resign, and sought to persuade him to stay. He then rescinded his resignation. However, on February 4, 2004, his supervisor issued a final warning for another alleged medication error. The employee believed that the warning was unwarranted because he previously had been instructed not to closely monitor the resident in an effort to see if the resident could learn to take the medication himself. Through his supervisor, he forwarded a specific rebuttal to the warning and an assertion that the supervisor, in effect, was threatening to retaliate against him for his earlier statements to the human resources manager. This document concluded with a request to reinstate his previous resignation.

On February 6, 2004, the employee consulted his doctor, who ordered cognitive function tests and gave him a slip excusing him from work through February 13 for unspecified medical reasons. He gave the slip to the employer. He had some additional contact with the human resources manager concerning disability and insurance issues, but none concerning his employment status or his complaints about his supervisor.

The employee submitted certified medical evidence that as of February 13, 2004, the employee was not able to perform his work for the employer. That evidence further indicated that on February 6, 2004, the employee's doctor advised him to seek work with less cognitive responsibilities.

During the time period in question, the employee's benefit year (weeks 7 through 37 of 2004), the employee had a number of physical and psychological conditions that limited the work the employee believed he would be able to perform. In his letter of resignation to the employer (Exhibit 12  (1)), the employee stated that he had a fragile back that limited his job opportunities. He indicated that he could lift 50 pounds, but not repetitively. He indicated that he could lift 30 pounds more frequently. At the first remand hearing, the employee again indicated that he has a fragile back (T. 70) and that he tries to limit his lifting to 30 pounds, non-repetitively, lifting 50 pounds on occasion. T. 70. The employee also tells prospec-tive employers that he has a 30-pound lifting restriction, 50 pounds occasionally. T. 80. One who has a 50-pound lifting restriction is limited to medium work, however, according both to the UCB-474 Medical Report form ("If the claimant is restricted to lifting, carrying, pushing or pulling not more than 50 pounds, and/or is restricted to 20 to 50 pounds occasionally, then s/he is restricted to medium work") and to the labor market analyst's expert testimony, T. 1 (second remand hearing). While it is true that the employee's physician indicated that the employee could do up to heavy work, the employee conceded that the physician was not the medical practitioner to whom the employee went for back treatment. T. 78. The employee conceded as well, at the second remand hearing, essentially that he did not disagree with medium lifting restriction. T. 23. These concessions by the employee, coupled with the employee's testimony about the actual lifting limitations he operates under and with the fact that the lifting restrictions the employee actually follows are those of medium work, negate the prima facie weight of his physician's indication that the employee is able to perform heavy lifting. The commission therefore finds that the employee has a medium lifting restriction.

The employee also testified to several medical conditions affecting his sleep patterns (and thus his potential work schedules). The work restrictions caused by these conditions have to be either self-imposed, in which case the employee would have to meet the 50 percent availability for work requirement of Wis. Admin. Code § DWD 128.01(2)(a), or caused by medical necessity, in which case the employee would have to meet only the 15 percent ability to work requirement of 128.01(2)(b). The commission has given the employee the "benefit of the doubt," for what it is worth, and determined to treat the employee's sleep-related disorders as uncontrollable medical restrictions, but that is the least disqualifying statutory path the commission believes the law allows it to take. The employee testified that he has a sleep disorder which prevents him from working a.m. hours. T. 66. He testified that this disorder is pre-insomnia anxiety, T. 67, and that because of it he needs to sleep until 10 or 11 a.m. and so cannot work until the afternoon. T. 68. He testified that 1 p.m. is the earliest he conceivably could start work, T. 69, and that he cannot work third shift. T. 68. By the employee's own evidence, therefore, the employee was limited to performing second shift work during the time period in question.

The employee also testified to several psychological conditions that limit the kinds of work he was able to perform during the time period in question. The employee testified that he suffered from anxiety, got confused easily, and could not "multitask" very well. T. 71. He testified that, when he worked for a diaper service and washed, dried, folded, and packed diapers, he had memory problems and multitasking problems. T. 73. The employee, who previously in his work life had performed insurance claims work, testified that he could no longer perform such work because of the memory and multitasking aspects of it. T. 76. The employee testified that his physical and mental problems prevented him from performing computer work as well. The employee's testimony in this regard is supported by the medical report of his physician (Ex. 10), which indicates that the employee suffered from anxiety, depression, and possible memory disorder. The report indicated that the employee suffered from mental illness, that he was not able to work for the employer, and that he should seek other work, work involving less cognitive responsibilities.

The employee's own testimony, regarding the kinds of activities he could not perform, was the basis for the labor market analyst's testimony regarding the kinds of work the employee could not perform. T. 13 (second remand hearing). From the employee's own psychological limitations, the labor market analyst concluded that the employee would be unable to perform work requiring the ability to direct, control, or plan activities; work requiring one to influence others' opinions, attitudes, or judgments; work requiring the ability to deal with stress, critical emergency, and dangerous situations; and work requiring the ability to perform varied job duties without loss of composure or efficiency.

The labor market analyst testified that the employee's medium lifting restriction rendered the employee able to perform approximately 90 percent of the suitable (2) work in his labor market. T. 2 (second remand hearing). The employee's restriction to second shift work easily is the most damaging. It reduces his ability to work from 90 percent to, at most, 19 percent of the suitable work in his labor market. T. 90.

This leaves the effect upon the employee's ability to work of his psychological conditions. The circuit court described as "stunning" the labor market analyst's assessment of that impact, given that he had no knowledge of the degree to which the employee's problems were disabling and was not qualified as an expert in the impact of those psychological conditions. Both of those criticisms, of course, are correct; the commission does not believe, though, that they go to a third consideration, a consideration that still requires the analysis made by the labor market analyst and adopted by the commission. The employee essentially imposed these conditions upon his ability to work himself, by testifying that, because of his anxiety, he gets confused easily and cannot do multitasking work, that he has memory problems, that he cannot perform computer work. Because the employee believed that his psychological conditions prevented him from performing the various kinds of work he testified he could not perform, he de facto took those jobs out of the universe of his suitable work. Once he did so, the fact finder had no choice but to further reduce the employee's ability to work percentage under Wis. Admin. Code § DWD 128.01(2)(b). That reduction placed the employee's ability to work percentage at 8 percent, T. 14-15 (second remand hearing), and that is not close to the minimum 15 percent ability to work requirement of 128.01(2)(b).

Wisconsin Stat. § 108.04(7)(a) provides 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 equaling at least four times the employee's weekly benefit rate, unless the termination was with good cause attributable to the employer or was within some other statutory exception. Wis. Stat. § 108.04(7)(c) provides as follows:

Paragraph (a) shall not apply if the department determines that the employee terminated his or her work, but had no reasonable alternative because the employee was unable to do his or her work or because of the health of a member of his or her immediate family; but if the department determines that the employee is unable to work or is unavailable for work, the employee is ineligible to receive benefits while such inability or unavailability continues.

Wisconsin Admin. Code ch. DWD 128 implements the statute. Wisconsin Admin. Code § DWD 128.01(1) provides that a claimant is eligible for unemployment benefits for any week of total unemployment only if the claimant is able to work and available for suitable work. Wisconsin Admin. Code § DWD 128.01(2) provides that a claimant is not considered to be able to work or available for work in any given week if:

(a) The claimant, without good cause, restricts his or her availability for work to less than 50 percent of the full-time opportunities for suitable work, including all such jobs whether vacant or filled, in the claimant's labor market area;

(b) The claimant's physical or psychological condition or personal circumstances over which the claimant has no control limit the claimant to less than 15 percent of the opportunities for suitable work, including all such jobs whether vacant or filled, in the claimant's labor market area;

The commission finds that the employee was unable to perform his work and had no reasonable alternative to quitting. The employee had previously advised the employer of his medical problems. The employee's difficulties were resulting in disciplinary action. The employee followed his doctor's advice and sought other work. However, based on the employee's restrictions, he was not able to perform at least 15 percent of suitable work in his labor market area, during the time period in question. This disqualification only affects certain of the weeks at issue, however.

Wisconsin Admin. Code § DWD 128.01(5) states that a claimant who is partially unemployed may have to comply with the requirements of Ch. DWD 128 "if there is some definite indication that the claimant is not genuinely interested in working full time." In other words, the disqualification one faces for not meeting the 15 percent ability to work requirement only applies in this case to weeks in which the employee was completely unemployed: 7-8, 10-16, and 18 of 2004. The disqualification does not apply to weeks 9, 17, and 19-37. (3)

The commission therefore finds that, in week 7 of 2004, the employee voluntarily terminated his work because he was unable to perform that work and had no reasonable alternative to quitting, within the meaning of Wis. Stat. § 108.04(7)(c). The commission also finds that the employee was not able to work, within the meaning of that statute and Wis. Admin. Code § DWD 128.01(2)(b), in weeks 7-8, 10-16, and 18 of 2004.

DECISION

The decision of the administrative law judge is modified to conform to the above findings and, as modified, is affirmed. Accordingly, the employee is ineligible for unemployment insurance in weeks 7-8, 10-16, and 18 of 2004. He is eligible for unemployment insurance in weeks 9, 17, 19 and thereafter. If the employer is subject to the contribution requirements of the Wisconsin unemployment insurance law, any benefits payable to the employee based on work performed for the employer prior to the quitting will be charged to the fund's balancing account.

Dated and mailed July 20, 2006
gadzifr . urr : 105 : 4  AA 240

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

NOTE: One focus of the circuit court's decision was the potential effect upon the employee's ability to work of medications that might be prescribed or otherwise made available to the employee. And, indeed, with those medications the employee now is able to work first shift and in fact is doing so. The commission sees no way to apply these facts retroactively, however, so as to make the employee eligible for benefits on that ground before he in fact was taking the medications. As indicated in the decision, the ability to work test includes a de facto eligibility requirement, such that one must meet the 15 percent ability to work requirement regardless of the reasons why he or she might not be meeting it. This reasoning also applies to one of the employee's complaints throughout: that had the employer not forced him to quit his employment, he would have been able to obtain the medical treatment necessary to overcome his medical restrictions. Such a "but for" analysis is not contemplated by the 15 percent ability to work requirement, which is a minimum and which is absolute.

cc:
Center for Comprehensive Services (Madison, Wisconsin)
The Mentor ABI Group



Appealed to Circuit Court. Affirmed June 11, 2007.

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Footnotes:

(1)( Back ) Citations to the transcript, circuit court record, and exhibits will be made for disputed factual propositions related to the employee's ability to work.

(2)( Back ) One issue in this case is whether the employee's insurance claims and worker's compensation work should be included in the employee's "universe" of suitable work. Wisconsin Admin. Code § DWD 100.02(61) defines suitable work as "work that is reasonable considering the claimant's training, experience, and duration of unemployment as well as the availability of jobs in the labor market." Given this definition, the employee's insurance claims and worker's compensation work should be included in the employee's universe of suitable work, as the definition does not exclude work an employee could perform but for the employee's medical restrictions. Indeed, to take such work out of the definition of suitable work negates the entire point of the ability to work requirement of Wis. Admin. Code § DWD 128.01(2)(b). For these reasons, finally, there is no evidentiary basis upon which to conclude that the employee might be able to perform 13 percent of the suitable work in his labor market.

(3)( Back ) The commission has taken administrative notice of department records regarding weeks in which the employee was not completely unemployed. If any of this information is erroneous, the employee should bring it to the department's or the commission's attention.

 


uploaded 2006/07/24