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

STEPHANIE M LAMPONE, Employee

EASY METHOD-NORTH SHORE DRIVING SCHOOL, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06607318MW


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 was hired by the employer in 2002 as a drivers education instructor. Her last day of work was January 3, 2006 (week 1).

She voluntarily terminated her employment effective October 9, 2006 (week 41).

The issue is whether this voluntary termination satisfied any exception to the quit disqualification.

Prior to January of 2006, the employee was assigned to conduct behind-the-wheel training during day and evening hours. The number of hours she worked each week varied depending on the time of year, i.e., she worked 40-50 hours during the summer and school vacations, and 20 hours during the school year.

In January of 2006, the employee sustained a knee injury when the student she was instructing at the time was involved in a car accident.

In May of 2006, the employee was released to return to work without restriction, apparently by the employer's physician (Nord). However, the employee informed the employer that she was not ready to return to work because she was unable to use her right foot for braking purposes. The employee asked the employer if it had an available classroom position for her. The employee was not placed in a classroom position at that time.

On September 6, 2006, the employee provided to the employer a note from her treating physician (Stone) stating that she was unfit to return to work until further notice.

On September 7, 2006, the employer received a copy of the results of the employee's independent medical examination (IME). In this report, the examining physician (Stiehl) opined that the employee was capable of working her full duties without restriction. The employee continued to receive workers compensation benefits until September 7, 2006.

On September 15, 2006, the employee initiated a claim for unemployment benefits.

On September 29, 2006, the employee provided to the employer a note from her treating physician (Stone) stating that she could return to work but could perform no behind-the-wheel training.

Based on this September 29 release from the employee's physician, the employer, on October 2, sent a letter (exhibit #4) to the employee stating in relevant part as follows:

Please be advised that a classroom only position has become available commencing Monday, October 9, 2006. This will be the beginning of a new class session and classes are scheduled in our normal Monday - Friday format from 5:00 PM to 7:00 PM. A new class will begin every 3 weeks. Although we have received a complete release from our Workman's Compensation insurance carrier allowing you to return to work without any restrictions, we will honor your request for a limited 4 hour per day work schedule. In addition, we will assign adult students to you that require tutoring for the State of Wisconsin instruction permit....Please report on Monday, October 9, 2006, at 4:45 PM at the classroom location at 6031 W Center Street and be ready to assume classroom responsibilities.

In response, the employee sent a handwritten letter (exhibit #5) stating in relevant part as follows:

. . . Last time we talked in late Sept. you said to call you when I was available full time to teach behind the wheel because that is my job and you have no classroom open. Besides I was never trained for doing classroom. I will keep in touch. My next appointment is 11-04-06....

The employer responded by letter dated October 5 stating in relevant part as follows:

Thank you for your letter received in our office on October 5...Your letter states you received no formal training in the classroom phase, however, our records indicate you attended and completed a fully paid 30 hour classroom training session. This program was administered under the direct supervision of Ms. Wendy Lucht at our 27th and Morgan location. As you know, a complete day-to-day outline and activity sheet is provided for the necessary material to be covered in each 2 hour session. If you feel uncomfortable or uncertain with the lesson plan, I would be more than willing to refresh your memory and prepare you on a daily basis prior to each session. Since you have taught behind the wheel for many years, some specific lessons overlap and are repetitive and transitioning to the classroom is quite simple.

You also enclosed a copy of the September 29, 2006 physician statement from Dr. James Stone. In our late September telephone conversation, you mentioned he would allow you to return to work only a limited schedule and not to exceed 4 hours per day. Conspicuously absent from his most recent statement is the mention of this 4 hour restriction. Based on this statement, it seems you should be available for work provided there is no behind the wheel instruction that requires you to use your right leg.

As I outlined in my letter of October 2, we will issue adult students to you that require tutoring...as well as a possible 20 hours per week of classroom instruction....Based on our adult student availability combined with the classroom instruction, you should be able to work 30-40 hours per week. Please report to 6031 W Center on Monday, October 9, 2006 at 4:45PM.

The employee failed to report to work on October 9, 2006, or thereafter.

The employee quit her employment the week of October 9, 2006, when she did not report to work.

The first question is whether the offer of the classroom training assignments was an offer of new work subject to the application of labor standards requirements.

The commission, citing the U. S. Department of Labor Unemployment Insurance Program Letter (DOL UIPL) number 984, defined "new work" in Koelsch v. American Landscape, UI Hearing No. 06603947MW (LIRC Nov. 2, 2006), as:

An offer by an individuals' present employer of (a) different duties from those he has agreed to perform in his existing contract of employment, or (b) different terms or conditions of employment from those in the existing contract.

Even though the employee, in her testimony, was at first very evasive about her qualification to provide classroom instruction, she ultimately conceded that, "I asked to teach classroom back in May so I must be licensed." The record also shows that the employer provided and paid her to complete 30 hours of training in classroom instruction.

Furthermore, the record does not show that the employer and employee agreed at the time of her hire that she would only be providing behind-the-wheel training and, in fact, her 30 hours of paid training in classroom instruction, as well as her May 2006 request for a classroom instruction assignment, support a contrary conclusion.

Finally in this regard, it appears that the employee was not actually concerned that she did not having the licensing or training to perform classroom instruction, but rather that she needed a classroom instruction refresher. The employer, in its letter of October 5, not only offered to provide such a refresher but to review each session's lesson plan with her on a daily basis.

The offer of classroom instruction was not an offer of new work. This result is rendered more compelling here by the fact that the employee had not only been paid by the employer to receive classroom instruction training, supporting a conclusion that this function was necessarily included within the scope of the original employment agreement, but the employee had actually requested the opportunity to provide classroom instruction just five months before the offer at issue here.

The next question is whether the employee's voluntary separation was for a reason which would qualify as an exception to the quit disqualification. The evidence of record does not show that any such exception would apply here.

The commission therefore concludes that, in week 41 of 2006, the employee quit her employment with the employer, but not with good cause attributable thereto or for any other reason constituting an exception to the quit disqualification of Wis. Stat. § 108.04(7)(a).

The commission finds that the employee was paid benefits in the amount of $3,863.00 for which the employee was not eligible and to which the employee was not entitled, within the meaning of Wis. Stat. § 108.03(1), and that waiver of this overpayment is not merited since the initial award of benefits was not based on department error but instead on a differing interpretation of the applicable law.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 41 of 2006, and until four weeks have elapsed since the end of the week of quitting and she has earned wages in covered employment performed after the week of quitting equaling at least four times her weekly benefit rate which would have been paid had the quitting not occurred. The employee is required to repay the sum of $3,863.00 to the Unemployment Reserve Fund.

Dated and mailed March 22, 2007
lampost . urr : 115 : 1  VL 1080.268  SW 844

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

 

NOTE: The commission did not confer with the administrative law judge before reversing his decision, because its reversal was not based upon a differing view as to the credibility of witnesses, but instead upon a differing conclusion as to what the hearing record in fact established and upon a differing interpretation of the relevant law.


Appealed to Circuit Court. Appeal dismissed on procedural grounds January 7, 2008.  Appealed to the Court of Appeals.  Dismissal affirmed in unpublished decision, March 17, 2009.  [Ct. App. decision summary]

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uploaded 2007/03/26