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

JERRI V BLAKEY, Employee

O'REILLY AUTOMOTIVE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 08201839EC


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 decision of the administrative law judge is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 46 of 2007, 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 $1,640 to the Unemployment Reserve Fund.

Dated and mailed January 9, 2009
blakeje . usd : 115 : 1  VL 1005.01

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION


The employee worked more than one year as a delivery driver/counter worker for the employer, an auto parts retailer.

On March 7, 2007, the employee suffered a concussion while making a delivery. He was placed on medical leave, and collected workers compensation benefits through March 26, 2007. He was released to return to work at that time without restrictions.

However, the employee continued to experience headaches and, as of August 30, 2007, was again placed on medical leave/workers compensation benefits. On September 17, 2007, his treating physician excused him from work until October 15, 2007; and, on October 15, 2007, excused him from work until November 19, 2007.

On or around November 16, 2007, the employee resigned his employment. He claims that this resignation resulted from delays in receiving his workers compensation benefit checks; the employer's "harassment" of him resulting from the workers compensation coordinator's daily contacts with him and requirement that he provide daily updates to her; and the employer's workers compensation carrier's refusal to speak to him based upon its erroneous assumption that he had retained an attorney.

The record shows, as the ALJ found, that there were occasional delays in the issuance of benefit checks to the employee by the employer's workers compensation carrier due to delays in the carrier's receipt of the required verifications from the employee's medical providers. The record does not establish that the carrier failed to promptly pay the employee once these verifications were received. The record does establish that, on those occasions when the employee brought concerns regarding his benefit payments to the attention of his supervisor or the employer's workers compensation coordinator, these individuals assisted him in resolving these concerns.

The employer's workers compensation coordinator testified without rebuttal that, after the beginning of the employee's second period of leave on August 30, 2007, she had contact with him only four times, and one of these was simply to leave a message for him on October 23. As the ALJ found, the record does not show that these calls were unwarranted or excessive.

Moreover, the record does not show that the employer had reason to be aware of any communications problems between the employee and the carrier, including any concern relating to his representation by an attorney, prior to his resignation. Before good cause attributable to the employer can be shown, the employee must establish that he 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 he is considering terminating his 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). The record does not show that the employee explored alternatives, or provided the employer an opportunity to address his concerns relating to communicating with the carrier, before submitting his resignation.

It appears from the record that the employee was frustrated by the paperwork and effort involved in assuring that his medical providers were completing the required workers compensation verifications for the carrier. However, not only is it reasonable for a workers compensation carrier to require medical verification, but these were not requirements imposed by the employer.

In his petition, the employee states that, "...the state of Wisconsin had to step in once before on my WC payments with the carrier o'reilly uses..." However, there is no evidence in the record to this effect.



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uploaded 2009/01/27