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

ANNE M LAPPEN, Employee

AUBBY INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07600575MW


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 worked almost 15 months for the employer as a caregiver for an elderly woman in her home. She initiated a claim for benefits on December 19, 2006 (week 51).

The issue is whether her separation from employment was a quit or a discharge and whether it occurred under circumstances which would permit the payment of benefits.

The employee generally worked a continuous 48-hour shift once each week. Consistent with employer policy, the employee was not paid for 8 hours of sleep time during each 24-hour shift

The employee began experiencing knee pain on September 3, 2006. She believed it may have been work-related. She phoned the employer's general manager on September 5. The general manager advised the employee to visit the medical provider with whom the employer contracted for workers compensation purposes, i.e., the work injury center.

The work injury center physician examined the employee on September 5. On the medical form completed as the result of this examination, the physician indicated that the employee reported right knee pain but it was not found to be work-related. The work injury center phoned the general manager and she understood from this call that the physician had not found any knee impairment.

Subsequently on September 5, the employee visited a walk-in clinic where she was examined by a nurse practitioner. This nurse practitioner stated by letter dated September 5 that the employee was able to return to work without restriction on September 11.

Relying upon the statement by the nurse practitioner, the employer contacted the employee. The employee told the employer during this contact that she was unable to work because she was in a lot of pain and effectively bedridden, using a walker to get around, and unable to drive her car. On September 9, the employee essentially requested vacation for the next five weeks (through October 20) by requesting a vacation day during each of the 48-hour shifts she was scheduled to work the following five weeks. The employee had earned these five vacation days, and the employer granted her request.

The employee testified that, as of the middle of September, her knee was fine.

When the employer contacted the employee shortly before October 19 to ask whether she wanted to pick up some shifts, she indicated she did not because she was "still hobbling around on my knee and didn't want to work yet."

This statement by the employee concerned the employer due to the physical demands, including client lifting, of her caregiver position. As a result, the employer notified the employee on October 19 (week 42) that she would not be allowed to return to work until she obtained a medical release. The employee referred the employer to the September 11 release which the employer indicated was insufficient. The employee told the general manager she was too upset to discuss the matter further, and had to get to work on "getting your requirements" met so she could return to work. The employee did not provide a further release and did not contact the employer again until November 22.

The employee testified that she told the general manager on October 19 that she was unwilling to provide a current release because she could not afford another doctor visit. The general manager disputes that the employee mentioned this during their conversation.

The employee paid the $115 cost for the visit to the walk-in clinic, but did not pay the $155 cost for the visit to the work injury clinic. She believed, since the employer had referred her to this clinic, it should pay this bill. The employer indicated, by letter to the employee dated September 28, that it was her responsibility to reimburse the employer this amount and, if she wished, the employer would use her last paycheck as partial payment. The employee never responded to this suggestion so her final paycheck was mailed to her in March of 2007.

The employee had an opportunity to maintain the employment relationship by providing a current medical release but failed to do so. This was a quit. See, McCormick v. Beck's Service LLC, UI Hearing No. 03002625WK (LIRC Nov. 25, 2003) (employee had opportunity to maintain employment relationship and failure to do so is a quit); Bressette v. St. Croix Casino, UI Hearing No. 04200320EC (LIRC Aug. 5, 2004; Werginz v. Krenn's Machine, Inc., UI Hearing No. 04609760WK (LIRC Feb. 15, 2005).

The next question then would be whether this quit satisfied any exception to the quit disqualification.

The only exception which could arguably apply here is set forth in Wis. Stat. § 108.04(7)(b), which provides for payment of benefits if an employee quits with "good cause attributable to the employing unit." The courts have defined "good cause attributable to an employer" to mean some act or omission that reasonably justifies the employee's decision to become unemployed rather than to continue working. It must involve some fault on the part of the employer and must be "real and substantial." Nottleson v. ILHR Department, 94 Wis. 2d 106, 120 (1980); Stetz v. DILHR, et al., Dane County Circuit Court, Case No. 136-215 (February 13, 1973). A necessary corollary to these considerations is that, before good cause can be shown, the employee must establish that she explored alternatives short of quitting. The employee must give the employer an opportunity to address and resolve matters that the employee finds so serious that she is considering terminating her employment because of them. See, e.g., Roth v. LIRC & Wisconsin Youth Co. Inc., Case No. 02-CV-00409 (Milw. Co. Cir. Ct. Aug. 5, 2002); Collier v. Rubbermaid & Co., UI Hearing No. 99604071RC (LIRC Oct. 14, 1999). Good cause attributable to the employer has been found where an employee has notified the employer of such concerns, and the employer has failed to take reasonable and necessary steps to address them, See, e.g., Opportunities Industrialization Center of Greater Milwaukee Inc. v. Barbara Dates & LIRC, Case No. 00-CV-7743 (Milw. Co. Cir. Ct. Mar. 20, 2001); Pinkos v. Burgess Car and Truck Service Center, UI Hearing No. 03604628MW (LIRC Nov. 26, 2003).

The first question in this regard is whether the medical release requirement was a reasonable one. Despite an opinion from a medical provider of the employee's choice that she would be able to come back to work on September 11, the employee did not do so, instead informing the employer on September 13 that she was effectively bedridden and using a walker (1) when she needed to move around, and again shortly before October 19 that she was still "hobbling around" and was not yet able to return to work. Given this information, and the fact that the employee's duties required her to lift and otherwise physically assist an elderly woman, the employer was reasonably justified in requiring a medical release on October 19.

The employee testified that she did not get the medical release on or after October 19 because she could not afford to pay for another doctor visit. This may have been more persuasive had not the employee effectively brought this on herself by failing to return to work when she was released to do so on September 11, and representing to the employer shortly before October 19 that she was still "hobbling around" and unable to work. Moreover, there are problems with the employee's credibility in this regard. She testified that her knee was fine as of the middle of September, but represented to the employer shortly before October 19, when she was asked whether she wanted to pick up some shifts, that she was still hobbling around and unable to work. In addition, if she was truly short of money, she would not have misrepresented her medical condition and relied upon this misrepresentation to refuse work.

The administrative law judge placed substantial reliance on her belief that the employer unfairly passed through to the employee the $155 charge for her visit to the work injury clinic, and that the work injury clinic should have examined the employee on or around October 19 free of charge. However, it is not inherently unreasonable, or surprising, for an employer not to pay for a medical visit found not to be work-related, or not to pay for a visit to get a medical release.

The record also shows that the employer held a $106 paycheck pending indication from the employee whether she wanted to use it as partial payment of the $155 work injury clinic bill, and did not immediately pay her for the five vacation days she used in September and October. It is important to note that the employee did not offer either of these pay matters as a reason for not obtaining a medical release, other than obliquely through her explanation that she could not afford to pay for another doctor visit. In addition, the employee never advised the employer that she did not want to apply the $106 paycheck toward the clinic bill. The employer testified that it was their practice to wait until an employee requested vacation pay because many of their workers preferred to receive it in the summer rather than immediately following the vacation period. Although this explanation is not particularly persuasive, the record does not show a pattern of payment failures as necessary to establish good cause attributable to the employer. See, Zahn v. Brooke Builders, Inc., UI Hearing No. 06001035JF (LIRC July 27, 2006) (employer's pattern of failing to pay employee in timely manner provided good cause for quit).

Finally, an employee is required to give an employer a reasonable opportunity to address a concern in order to show good cause for a quit. Here, the employer disputes that the employee ever offered her inability to pay for another doctor visit as a reason for not obtaining a medical release. More significantly, the employee never explored any other alternatives with the employer, but simply ended the discussion when she was told a medical release was required, and did not contact the employer again for more than a month.

The commission therefore concludes that, in week 42 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 $2,698 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, and there is no indication of employer fault.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 42 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 $2,698 to the Unemployment Reserve Fund.

Dated and mailed May 3, 2007
lappean . urr : 115 : 1  VL 1007.01  VL 1005.01

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

 

NOTE: The commission did not confer with the administrative law judge before reversing her 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.



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Footnotes:

(1)( Back ) The employee testified that she obtained this walker from a friend, not from a medical provider.

 


uploaded 2007/05/15