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

JOHN P LYDON, Employee

STANLEY STEEMER CARPET CLEANER, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 10006083JV


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 eligible for benefits beginning in week 33 of 2010, if otherwise qualified.

Dated and mailed March 31, 2011

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

MEMORANDUM OPINION

The employer has petitioned for commission review of the adverse appeal tribunal decision. The employer argues that the employer sent the employee a letter on August 17, 2009, informing the employee that the employer had light duty work within the restrictions of his physician which was to begin on August 20, 2009. The employee's doctors did not release him to work. The work offered by the employer was based on an independent medical examiner's opinion. The employee had the right to rely upon the opinion of his treating doctors who indicated he could not work until after he had surgery and had reached a healing plateau. His failure to disregard the opinions of his doctors and return to work based on the opinion of the independent medical examiner was not inconsistent with the continuation of the employment relationship. Therefore the ALJ correctly concluded that the employee did not quit in August and the employee's reliance upon the advice of his doctor's did not demonstrate an intent to either quit or refuse work with the employer.

cc: Attorney Edward E. Robinson
Nicholas Schiavo


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