RUTH A NICHOLS, Employee

WISCONSIN BELL INC, Employer

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.

The decision of the administrative law judge is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 13 of 2006, and until four weeks have elapsed since the end of 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 employee's weekly benefit rate which would have been paid had the quitting not occurred.

Dated and mailed November 16, 2006
nicholr . usd : 164 : 4   VL 1023.10  VL 1023.20

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

In her petition for commission review, the employee argues that her quitting fell within Wis. Stat. § 108.04(7)(c). The employee states that her health justified her refusal to continue in the position and that the employer had the burden of establishing that there were other positions available for her which she could fill without risk to her health. The employee contends that the employer's witness was unable to point to vacant non-sales positions in the Appleton office and admitted that at the time the employee quit there were no non-vacant positions.

The employee's argument fails. To begin with, the commission is unpersuaded that the employee was medically unable to do her job. The employee's doctor indicated she could perform the job, but suggested it would be in the employee's "best interest" to try to look for another job so hopefully she would feel better. Further, while the employee testified that her work-related stress was caused by a manager who was critical of her performance, at the time the employee quit she was working with a new manager whom she described as "fine." The statute contemplates that quitting must be necessitated by the employee's medical condition, and not merely a preferable or beneficial option. See Witchard v. LIRC and Compcare Health Services Insurance Corp., No. 96-CV-1188 (Wis. Cir. Ct. Dane County Jan. 12, 1997). In this case, the employee's quitting was less a medical necessity than a preferable or beneficial option.

Moreover, the employee did not explore, let alone exhaust, reasonable alternatives to quitting, as required under the statute. The employee never told the employer she was having a medical problem, never complained about stress and never attempted to seek redress for her problems in the workplace. At the hearing the employer did not specify whether or not it had any vacant non-sales positions at the time the employee quit, but contended that it would have placed the employee in such a position if it had one available. While it is possible that the employer would not have been able to accommodate the employee in this manner, the fact remains that she quit without giving it any opportunity to do so. Under all the circumstances, the commission agrees with the appeal tribunal that the employee's quitting did not fall within the Wis. Stat. § 108.04(7)(c) exception.

The employee has provided the name of another worker whom she contends received benefits under the same circumstances. However, the fact that an appeal tribunal decided a separate case in a manner favorable to the employee does not compel the commission to arrive at a similar decision. Moreover, the commission has reviewed the appeal tribunal decision issued for the employee in question and believes that the facts in that case, assuming they are supported by the record, warranted a different result.

cc:
Attorney John S. Williamson, Jr.
Geoffrey Hermsen

[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]

uploaded 2006/11/20