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

TODD A BAKER, Employee

MENARD INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06607483RC


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.

DECISION

The employee's petition is accepted for commission review. The decision of the administrative law judge is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 40 of 2006, and until four weeks have elapsed since the end of the week of quitting and he has earned wages in covered employment performed after the week of quitting equaling at least four times his weekly benefit rate which would have been paid had the quitting not occurred.

Dated and mailed May 10, 2007
bakerto . usd : 115 : 1   VL 1007.01  VL 1005.01

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION


Late petition

The administrative law judge's decision was dated and mailed on March 6, 2007, and stated on its face that an appeal must be received or postmarked by March 27, 2007. The employee's appeal was postmarked in Milwaukee on March 28 and received by the department on March 29, 2007.

In the explanation he offered to the commission, the employee explains that he posted the petition in Racine, where he resides, on March 27, 2007.

The commission has previously held, under parallel circumstances, that, where a petitioner contends that his petition was placed in the postal stream on the day prior to the date of postmark, and where the postmark indicates a different city then that from which it was mailed, the petition will be accepted. See, Lang v. General Business Services, Inc., UI Hearing No. 98003796MD (LIRC Feb. 16, 1999); Ajer v. Andersen Windows, UI Hearing No. 04202666EC (LIRC Feb. 18, 2005); Calvert v. Goodyear Tire & Rubber Co., UI Hearing No. 06002060MD (LIRC Nov. 2, 2006). The commission's rationale is that the postal service's decision to postmark mail at a different city from where it was deposited is not a procedure of which a reasonable person can be expected to be aware.

Applying this principle here, the employee's petition is accepted for commission review.

Merits

The employee worked eight months as a sales associate in the millwork department of the employer, a retailer.

On or before September 19, 2006, the employee injured a hamstring tendon. He visited a Concentra clinic. The physician who examined him there indicated he could return to work but was required to wear an Ace bandage and was restricted to sitting 95% of the work day. He provided these restrictions to the employer which assigned him to work in the kitchen department. This assignment enabled the employee to sit as needed.

The employee returned to this Concentra health care provider on September 22 and was told that he needed no further treatment and could work without restriction. The employee disagreed with this assessment and sought a second opinion at an Aurora clinic.

The physician who examined him at Aurora on September 22 diagnosed his injury as a hamstring strain, and restricted the employee to sitting work only.

The employee visited Aurora again on September 28 when his work restriction was modified to standing/walking 1-3 hours each day and lifting no more than 10 pounds.

The employee visited Aurora again on October 4 when his September 28 restriction was continued with the addition of a requirement that, when sitting, the employee's feet should be on the floor and the seat cushioned.

From September 19 through October 4, the employee had continued in the kitchen department assignment which enabled him to sit as needed.

On October 4, the employee met with the general manager, the first assistant general manager, and the human resource coordinator to discuss his work restrictions. He was told that no sitting work was available and, as a result, consistent with his restrictions, he would be scheduled for 3-hour shifts performing work requiring walking/standing. The employee was instructed to report for work the next day at a particular time to receive his new schedule.

The employee did not report to work on October 5 or thereafter, and did not contact the employer again until October 26. The employer attempted to contact the employee on and after October 5 but was told by the person who answered the phone at the number the employee had provided that the employee did not live there.

The employee testified that he did not agree with his treating Aurora physician that he was able to stand 1-3 hours each work day and, because he had been told on October 4 that he would no longer be assigned duties which he could perform sitting in a chair, he did not report to work on October 5 or thereafter.

The separation was a quit. The employee had an opportunity to maintain the employment relationship by reporting to work on October 5 and thereafter but failed to do so or to even maintain contact with the employer.

The employee argues that his actions were reasonably justified, i.e., that there was good cause attributable to the employer for his quit, because he was not offered sit-down work, and his only chance to sit down during his 3-hour shifts would have been on a stool, not a chair with a cushion.

However, the employer was reasonably justified in relying upon the restrictions imposed by the employee's treating physician. These restrictions, on and after September 28, did not limit the employee to sit-down work but indicated instead that he could stand/walk 1-3 hours each day. Consistent with these restrictions, the employee's physical condition would not have required him to sit down during the 3-hour shifts he would have been assigned on and after October 5, so the fact that a stool rather than a cushioned chair would have been available to him is immaterial.

The employee seems to imply in his argument that, because the employer could not offer him full-time work during the period of his work restrictions, he was justified in not reporting to work at all until his restrictions were lifted. However, the employer had full-time work available for the employee during this period of time, but, according to the restrictions imposed by his physician, he was only physically capable of performing such work three hours each day. The employer offered him this opportunity.

Wisconsin Statutes § 108.04(7)(c) (1)  states an exception to the quit disqualification if a worker had no reasonable alternative because he was unable to do his work. Here, however, the employee did have a reasonable alternative. He could have reported to work the three-hour shifts offered him by the employer during the period his work restrictions were in place and filed a claim for partial benefits.



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Footnotes:

(1)( Back ) "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."

 


uploaded 2007/05/15