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


BRIAN E ARNOLD, Employe

RD ROMAN INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98000732MD


On February 12, 1998, the Department of Workforce Development issued an initial determination which held that the employe quit his employment, but not for a reason allowing for immediate eligibility for unemployment insurance. The employe timely filed a request for hearing on the adverse determination, and hearing was held on March 11, 1998 in Madison, Wisconsin before a department administrative law judge. On March 13, 1998, the administrative law judge issued an appeal tribunal decision reversing the initial determination. The Department of Workforce Development timely filed a petition for commission review of the appeal tribunal decision. The commission, by June 12 and September 30, 1998 orders, remanded this matter for additional hearings on August 12 and October 28, 1998, but the employe failed to appear at either remand hearing. The matter now is ready for disposition.

Based upon the applicable law and the records and other evidence in the case, and after consultation with the administrative law judge, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked during approximately ten days as a tile installation helper for the employer, a tile contractor. His hourly wage rate was $17.55 and his last day of work was Monday, July 14, 1997. The initial issue to be decided is whether the employe quit or was discharged. If the employe quit, a secondary issue is whether the employe's quitting was for any reason that would permit the immediate payment of unemployment benefits. If the employe was discharged, a secondary issue is whether the employe's discharge was for misconduct connected with that employment. The commission concludes that the employe quit, but not for a reason allowing for immediate eligibility for unemployment insurance. The commission therefore reverses the appeal tribunal decision.

While working for the employer, the employe experienced an allergic reaction to tile grout material, which included latex. His physician informed him that it could trigger a heart attack. Shortly before his last day, he informed the employer of this condition and its severity, and requested that he be assigned other work. The foreman suggested that he wear gloves and continued assigning him work using the grout. When the employe reported for work on his last day, the foreman expressed surprise that he was still working for the employer. Because the employe mistakenly interpreted the foreman's remark as a notice of discharge, he left the job site without comment and did not return.

The employe contended that he had not quit, but rather had been discharged by the employer on his last day of work. That contention cannot be sustained.

The courts have held that if an employment relationship is to be terminated by the employer, there must be something more in the record than the mere assumption or impression of the employe to the effect that he is being fired. An employe owes a duty to definitely ascertain what his employment status is before concluding that the employment relationship is fully terminated. Eisenberg v. Ind. Comm., Case No. 116-225 (Dane Cty. Cir. Ct. 1-5- 66) and Rupcic v. Wis. Liquor Co., Inc., Case No. 150-045 (Dane Cty. Cir. Ct. 2-21-77).

In this case, the employer did not give the employe actual notice of discharge and the employe made no attempt to confirm the meaning of the foreman's remark on his last day. It was established by credible evidence that the employer had taken no action to end the employment relationship. It was the employe who ended the relationship, when he left the job site without explanation and failed to return. Accordingly, he was not discharged, but quit his employment.

The statutes provide that if an employe terminates employment with an employing unit, the employe's benefit eligibility shall be suspended until four weeks have elapsed since the week of the quitting, and the employe has earned wages in covered employment equaling at least four times the employe's weekly benefit rate, unless the termination was: (1) with good cause attributable to the employer; (2) because the employe was physically unable to do the work and had no reasonable alternative; (3) because the health of a member of the employe's immediate family left the employe no reasonable alternative; (4) in lieu of a suspension or termination by the employing unit of another worker's employment; (5) to accept a recall to work for a former employer within 52 weeks after having last worked for such employer; (6) within ten weeks after starting employment which could have been refused with good cause; (7) because the employer made employment, compensation, promotion, or job assignments contingent on the employe's consent to sexual contact or sexual intercourse; or (8) because the employe left or lost the work due to reaching the employer's mandatory retirement age.

In this case, the two applicable exceptions to the quit/disqualification are quit with good cause to the employer and quit/medical necessity. The employe did not prove the applicability of either of these exceptions. The employe testified that his physician told him latex could trigger a heart attack. This is a medical opinion and, as such, should be proven by certified, medical evidence. The employe had several opportunities to provide medical evidence of this claim, but failed to do so. Further, an employe generally must establish the lack of reasonable alternatives to simply quitting the employment. In this case, one issue was whether the employe could have gotten around his allergy to latex by wearing gloves while working. The employe did not establish that he could not have done so. For these reasons, the employe has not established the applicability of either § 108.04(7)(b), the quit with good cause attributable to the employer exception, or § 108.04(7)(c), the quit/medical necessity exception.

The commission therefore finds that, in week 29 of 1997, the employe terminated his employment with the employer, but not for a reason constituting an exception to Wis. Stat. § 108.04(7)(a). The commission also finds that the employe was paid benefits in the amount of $282.00 per week for each of weeks 29 through 31 of 1997, totaling $846.00, for which he was ineligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1). Of this amount, $150.00 is dealt with in another decision. Accordingly, pursuant to Wis. Stat. § 108.22(8)(a), he must repay $696.00 to the Unemployment Reserve Fund (as a result of the instant decision). The commission also finds, finally, that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c). Although the overpayment did not result from employe fault as provided in Wis. Stat. § 108.04(13)(f), yet the overpayment also was not the result of departmental error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is ineligible for benefits beginning in week 29 of 1998, 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. As a result of this decision, the employe must repay $696.00 to the Unemployment Reserve Fund.

Dated and mailed: November 19, 1998
arnolbr.urr : 105 : 1  VL 1007  VL 1023.20 PC 714.10

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

NOTE: The commission has accepted the factual findings of the administrative law judge in this case and, indeed, adopts them almost verbatim. The commission disagrees with the administrative law judge, though, as to the sufficiency of the employe's evidence in support of his quit of the employment.


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