TINA L BANKS, Employee

ST JOHNS ON THE LAKE, Employer

Wisconsin Statute 108.09(6)(d), provides that the commission may affirm, reverse, modify or set aside the appeal tribunal decision on the basis of the evidence previously submitted, may order the taking of additional evidence, or it may remand the matter to the department for further proceedings. Pursuant to authority granted in Wis. Stat. 108.09(6)(d), the commission sets aside the appeal tribunal decision dated June 30, 2010 and remands back to the same ALJ for additional hearing and a new decision on whether the employee's reasons for quitting fall within the exception at Wis. Stat. 108.04(7) (c).

The employee should come to the hearing with information from her mother's doctor or other qualified professional regarding the nature of her mother's illness or disability and the kinds of personal or daily nursing care that the employee is required to provide for her.

Dated and mailed September 30, 2010
banksti . upr : 178 : 5 VL 1039.09

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

The ALJ found that the employee quit effective in week 45 within the meaning of Wis. Stat. § 108.04(7)(m) and had not requalified by the time her employment ended in February 2010. He further found that the quitting was not within any exception.

Despite previous statements from the employee that she had done so to care for her sick mother, the ALJ failed to elicit any testimony from the employee regarding whether her reasons for reducing her hours fell within the quit exception contained in Wis. Stat. § 108.04(7)(c). The commission has found that a quitting caused by a reduction in hours may fall within an exception permitting benefits. In particular, the commission found that employees who reduced their schedules on the advice of their doctors fell within the exception at Wis. Stat. § 108.04(7)(c). Eatmon v. United Lutheran Program for the Aging Inc., U I Dec. 03609434MW (LIRC Mar. 5, 2004); Fritz v. Wal Mart Associates Inc., U I Dec.03402197AP (LIRC Mar. 17, 2004).

The commission sets aside the appeal tribunal decision and remands this matter so that the ALJ can take additional testimony and issue a new decision regarding whether the employee reduced her hours because the illness or disability of her family member required her to provide care.

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uploaded 2010/11/02