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

SUSIE M MILLER, Employee

EDITHS CAKES & CATERING INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 08001330MD


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 for the employer, a caterer, for a year and a half as a dishwasher and prep-cook. The employee's job duties included washing dishes, peeling potatoes, and assembling salads and relish trays. Her last day of work was February 29, 2008 (week 9).

The employee has severe dermatitis whereby her skin reacts to the acids in foods, soaps and cleaners. The employee was aware that she had this condition at the time she began working for the employer, but decided to give it a try because she needed a job. However, the employee's job duties exacerbated her medical condition. At times the employee would break out in a rash all over her body, which sometimes became so severe that her hands would bleed. The employee missed several periods of work for this reason.

The employee tried to use different soaps, but had continual problems. She also attempted to perform her job wearing gloves, but the gloves made her hands itch and sweat profusely. The employee's doctor was able to give her a shot that would clear up the problem temporarily, but it would recur when she returned to work. The employee most recently saw her doctor on January 5, 2008, about two months before she quit, at which point he advised her she needed to find a different job and should look for work that is dry and clean and does not involve water. The employer had no other work available for the employee.

On February 20, 2008, the employee notified the employer she was quitting effective March 10 (week 11) due to her medical condition. On February 29, after the employee got into a tiff with a co-worker, the employer decided to end her employment effective immediately. The employee initiated a benefit claim in week 10 of 2008.

The issue to be decided is whether the employee's quitting was for any reason that would permit the immediate payment of benefits.

Wisconsin Statute § 108.04(7)(c), provides that an employee who terminates her work but has no reasonable alternative to quitting because she is unable to do her work is eligible for benefits if otherwise able to work and available for work. The commission finds that the employee's quitting falls within that section.

The parties are in agreement that the employee suffered from severe dermatitis and that her work for the employer exacerbated the condition to the point where the employee's hands would bleed and she would have to miss work. The employee and the employer considered whether any accommodations were available that would enable her to continue working, but were unsuccessful at identifying any solution to the problem. The employee's doctor agreed that she should seek other work that would not require her to get her hands wet. Under all the circumstances, the commission is satisfied that the employee had no reasonable alternative but to quit her job due to her medical condition. Further, while the employee must seek out a dry working environment, there is no reason to believe that she is not generally able to work and available for work on her labor market.

Finally, the commission notes that, although the employee intended for her resignation to become effective in week 11 of 2008, the employer only permitted her to work through week 9 of 2008. Absent any evidence of intervening misconduct on the employee's part, the employee is eligible for benefits beginning in week 10 of 2008.

The commission therefore finds that in week 11 of 2008 the employee terminated her work with the employing unit because she was unable to do that work pursuant to Wis. Stat. § 108.04(7)(c), but that she was otherwise able to work and able for work on the general labor market.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 10 of 2008, provided she is otherwise qualified. There is no overpayment as a result of this decision.

Dated and mailed May 14, 2008
millesu . urr : 164 : 9   VL 1023.10

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

 

NOTE: The commission did not confer with the administrative law judge about witness credibility and demeanor. The commission's reversal is not based upon a different assessment of witness credibility but is as a matter of law. Although the administrative law judge found that the employee's doctor did not recommend she quit her job for the employer and that the employee submitted no medical evidence, the commission does not believe that either of these factors prevent a finding in the employee's favor. No medical evidence was required where the employee had a readily ascertainable medical condition that both parties agreed worsened during the course of her employment and prevented her from performing her job. While the employee's doctor may not have specifically told the employee to quit her job, he recommended she seek work that would not require her to get her hands wet. It is apparent that the employee was physically unable to perform her job for the employer and that no accommodations were available for her.


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uploaded 2008/05/27