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

ROBERT J WILKE, Employee

CHILSON INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06202060EC


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. Following receipt of the employee's petition, on February 8, 2007, the commission ordered the taking of additional medical evidence in this matter. The additional hearing was conducted on March 27, 2007 with the matter returned to the commission for further action.

The commission has considered the petition, and the positions of the parties, and it has reviewed the evidence submitted at the original hearing and the remand hearing. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for seven and a half years as a parts department counter worker for the employer, an automobile dealership. He worked Monday through Friday from 8:00 a.m. to 5:00 p.m. His last day of work was Friday, August 4, 2006 (week 31).

The employee did not report to work as scheduled on Monday, August 7, 2006 (week 32). At 2:00 p.m., he telephoned the employer indicating that he was uncertain whether he would be able to work that Tuesday or Wednesday. The employee then spoke with the employer's president and asked whether the employee still had a job. When the employer's president responded that he "did not know," the employee responded, "Thanks a lot" and hung up. The president attempted calling the employee back but received no answer until he used a telephone, the number of which the employee would not recognize. Upon answering the telephone and hearing the president's voice, the employee quickly hung up. No other conversations took place between the employee and the employer until August 18, 2006.

As of August 7, 2006, the employer was aware that the employee was suffering from an anxiety disorder and had discussed with him the possibility of applying for social security disability benefits. In addition to the anxiety, as of August, the employee was also suffering from alcohol dependence. At the employee's hearing, the employee's physician testified that the employee was "out of control." The employee's family assisted him in entering a treatment program on August 8, 2006. On the 8th, the employee's cousin spoke with the employer's president. The cousin informed the employer's management that the employee had been hospitalized and that he was uncertain how long the employee would be in the hospital. While the cousin believed that the employer would be terminating the employee based on the response he received that day, he did not report this to the employee.

The employee was in an inpatient treatment program from August 8 to 18, 2006. During this time, the employee did not make any attempts to contact the employer because he was focused on his recovery. Upon his release on Friday, August 18, 2006 (week 33), the employee reported to the employer's business. At that time, the employee was informed that the employment relationship no longer existed.

On a certified medical form, the employee's physician indicated that as of Monday, August 7, 2006 (week 32), the employee was not able to work for the employer but that, after completion of the treatment program, on Monday, August 21, 2006 (week 34), the employee was again able to work and available for work. Department records reflect that the employee initiated a claim for unemployment insurance benefits as of Tuesday, August 22, 2006 (week 34).

The first issue to be decided is whether the employee quit or was discharged.

Medical evidence reflects that the employee was out of control as of August 7, 2006. While his actions on that day were inconsistent with maintaining the employment relationship, there is no evidence that he was able to form the necessary intent to actually sever it. However, once the employee was enrolled in treatment, the employee made a conscious decision to focus on his treatment and recovery instead of contacting the employer. The employee's failure to contact the employer for the remainder of the week, once he was receiving treatment, was inconsistent with the continuation of the employment relationship and constituted a quitting.

The general rule under the Wisconsin Statutes is that a worker who quits is ineligible for unemployment insurance benefits unless their quitting was found to be within an exception. Wis. Stat. § 108.04(7)(c) provides that the general disqualification does not apply if a worker terminates his employment but has no reasonable alternative because the employee was unable to do his work because of his own health; under this exception, a worker remains ineligible for unemployment insurance benefits while the inability or unavailability continues. Additionally, under this statutory exception, if the employer is subject to the contribution requirements of the Wisconsin Unemployment Statutes, it shall not be charged for the employee's quitting; instead, the balancing account will be charged.

The employee presented competent medical evidence that his quitting fell within the meaning of the above exception and that, as of week 34 of 2006, he was able to work and available for work. Consequently, he was eligible for benefits as of week 34 of 2006.

The commission therefore finds that in week 32 of 2006, the employee was not discharged but voluntarily terminated his employment within the meaning of Wis. Stat. § 108.04(7)(c) and that as of week 34 of 2006, the employee was able to work and available for work.

DECISION

The appeal tribunal decision is modified to conform with the above findings, and, as modified is affirmed in part and reversed in part. The employee is eligible for unemployment insurance benefits beginning in week 34 of 2006, if otherwise qualified.

Dated and mailed April 16, 2007
wilkero . urr : 150 : 1  VL 1054.01 VL 1023.10

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

 

NOTE: The commission did not confer with the administrative law judge prior to reversing the appeal tribunal decision. In particular, the reversal is based upon a differing legal conclusion reached after additional evidence was obtained at the remand hearing.


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