P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)



Hearing No. 09004702MD

On August 14, 2009, the department issued an initial determination finding that in the week ending July 11, 2009 (week 28), the employer discharged the employee because she was unable to perform suitable work or unavailable for suitable work otherwise available with the employer;  but that as of the week ending July 18, 2009 (week 29), the employee was able to perform and available for suitable work in the labor market, all within the meaning of Wis. Stat.§ 108.04(1)(b).   The employer appealed and a hearing was held before an administrative law judge on October 19, 2009.  On October 22, 2009, the ALJ issued an appeal tribunal decision that made detailed findings and affirmed the initial determination.  The employer filed a petition for commission review, and on March 29, 2010, the commission issued a Decision and Memorandum Opinion affirming the appeal tribunal decision.

The employer appealed to Dodge County Circuit Court, Honorable Brian A. Pfitzinger presiding, and on December 29, 2010, Judge Pfitzinger issued a decision that remanded the matter to the commission for further consideration.

The commission has again reviewed the record and reconsidered its prior decision.  The commission hereby sets aside its prior decision arid substitutes therefor the following findings and decision, which constitute an amendment and affirmance of the appeal tribunal decision.  The commission makes the following:


The employee worked for over seven years as a commercial driver for the employer, a trucking business.  Her last day of actual work was March 20, 2009.  The employment relationship ended on July 11, 2009 (week 28).  Department records indicate that the employee initiated a claim for unemployment benefits on July 12, 2009 (week 29), and filed unemployment claims for that week and subsequent weeks.

On or around March 18, 2009, the employee lost sight in her left eye.  She continued to drive her routes for the employer and enjoyed a brief normalization of her eyesight, but subsequently her left eye vision loss recurred.  She had notified the employer of her vision loss on March 20, 2009, and was seen by an ophthalmologist soon thereafter.  She took some vacation time, and then requested and was granted medical leave, which continued until July 11, 2009.

During the employee's medical leave, her eyesight in her left eye improved somewhat.  However, her visual acuity and field of vision in the eye did not meet the requirements of the federal department of transportation for commercial drivers in interstate commerce.  On June 26, 2009, the state department of motor vehicles issued her a license to operate commercial vehicles in intrastate commerce.  However, her previous driving routes for the employer had been within and outside of Wisconsin, and some of the freight in the employer's trucks was obtained from outside of Wisconsin.  Accordingly, the employer was unable to continue her regular employment because it involved interstate commerce, and the employer had no other work available for her.  The employee remained on medical leave and the employer continued to look for other work it might have available for her.

In early July 2009, the employer offered the employee a warehouse job at $10.00 per hour, which was substantially less than her previous wage of $17.50 per hour.  The warehouse was also located 65-70 miles away from the employee's residence.  Nevertheless, the employee visited the warehouse on July 10, 2009, to see what the work involved and to view the work environment.  The lighting inside the warehouse was dim, and this poor lighting together with depth perception problems caused by the employee's compromised eyesight resulted in her bumping into the corners of equipment and furniture.  Because of this safety issue she did not consider the job to be suitable for her, and she informed the employer that for that reason she could not accept the position.  The employer had no other work available to offer her.

The department submitted a labor market report that provided credible evidence that with the employee's work experience as a "tractor-trailer operator driver," there were over 60,000 full and part-time jobs that were suitable for her in her labor market, and that even with her limited field of vision she was able to perform 75% of these jobs.

Wisconsin Stat. § 108.04(1)(b)1., provides in relevant part:

"...if an employee's employment is suspended by the employee or the employee's employer or an employee is terminated by the employee's employer, due to the employee's unavailability for work or inability to perform suitable work otherwise available with the employee's employer, or if the employee is on a leave of absence, the employee is ineligible for benefits while the employee is unable to work or unavailable for work." (emphasis added).

The employee's employment with the employer ended effective July 11, 2009.  The employer has asserted that it did not terminate her employment, and that the record contains no evidence of a termination.  The employer also emphasizes the fact that it was the employee's uncontrollable medical condition that prevented her from continuing to perform her regular truck driving job.

The employer's primary assertion is grounded on the fact that no one, and particularly the employer, can be blamed for the employee's medical condition.  However, the issue at hand does not involve who is to blame for the employee's medical condition.  Neither the employer nor the employee is responsible for the employee's partial loss of vision, nor did the employer or the employee desire the employee's regular employment to end.  However, the employee's uncontrollable medical restriction prevented her from continuing to perform her regular job, and for reasons beyond its control, the employer was unable to offer the employee any other suitable employment.  This is one of the circumstances specifically contemplated in Wis. Stat. § 108.04(1)(b)1.  The employee was terminated due to her "...inability to perform suitable work otherwise available with the employee's employer."

The employer asserts that there is no evidence in the record of a termination. However, there can be no dispute over the fact that the employee's employment ended because the employer had no suitable work available for her as of July 11, 2009. The employer may choose to emphasize the fact that employee's medical condition was primarily to blame for her inability to continue her regular employment; but regardless of blame, the fact is that this was an instance in which the employer no longer had work available for the employee, and the employee was laid off (terminated) due to the employer's inability to provide suitable work.  (1)

Wisconsin Stat. § 108.04(1)(b)1., provides that in such circumstances an employee is ineligible for unemployment benefits "...while the employee is unable to work or unavailable for work." That was the purpose of the department's investigation and subsequent submission of the labor market report that demonstrated that the employee, with her partial loss of vision, was still able and available for approximately 75 percent of the suitable jobs in her labor market.  Wis. Admin. Code § DWD 1 28 . 0 1 (3)(a), provides in relevant part:

"(3) ABLE TO WORK. (a) Able to work means that the claimant maintains an attachment to the labor market and has the physical and psychological ability to engage in some substantial gainful employment in suitable work."

Wis. Admin Code. § DWD 128.0 1(4)(a) provides in relevant part:

"(4) AVAILABLE FOR WORK. (a) Withdrawal from labor market. Available for work means that the claimant maintains an attachment to the labor market and is ready to perform full-time suitable work in the claimant's labor market area. An individual who has a physical or psychological restriction and is found able to work under sub. (3) shall not be considered unavailable for work solely because of inability to work, provided the individual is available for suitable work for the number of hours the individual is able to work."

The credible evidence demonstrates that the employee remained attached to her labor market, and possessed the physical and psychological ability to engage in some substantial gainful employment in suitable work. (75 percent of the suitable jobs in her labor market area).

Accordingly, the appeal tribunal decision properly determined that in week 28 of 2009 (the week ending July 11, 2009), the employee's employment was terminated by the employer because the employee was unable to do, or unavailable for suitable work otherwise available with the employer, within the meaning of Wis. Stat. § 108.04(1)(b)1., but that as of week 29 of 2009, the employee was able to work and available for work in the general labor market, also within the meaning of Wis. Stat. § 108.04(1)(b)1.


The commission's decision dated March 29, 2010, is set aside.  In its place the above commission findings and decision are substituted.  These constitute amendment and affirmance of the appeal tribunal decision.  The employee is eligible for unemployment insurance benefits as of week 29 of 2009, if otherwise qualified.

Dated and mailed May 5, 2011
culvesh : 185 : 5 AA 105


/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner


The circuit court held  "...that the commission did not either make a finding or accept a finding of the ALJ as to the issue of termination of employment." (Circuit Court Decision, p. 3). The court remanded the matter to the commission to consider and address this issue, which the commission has done in the above findings.

In its decision issued on March 29, 2010, the commission affirmed the appeal tribunal decision.  The commission believes that in so doing it did address the issue of termination of employment, because the appeal tribunal decision included a finding that: "the employee was discharged by the employer due to her inability to perform her previous work and because there was no other suitable work available for her."  The appeal tribunal decision additionally provided detailed reasoning for this finding.  Nevertheless, in accordance with the court's directive, in the above findings and decision the commission reconsidered the issue of termination.

The Memorandum Opinion attached to the commission's original decision of March 29, 2010, also addressed a new argument made by the employer in its petition to the commission.  The argument was that Wis. Stat. § 108.04(1)(f), resulted in the employee being ineligible for unemployment benefits, because she lost her interstate commercial driving license.  The commission explained that Wis. Stat. § 108.04(1)(f), renders an employee ineligible for unemployment benefits only if his/her license is lost "due to the employee's fault," which was not what occurred in the employee's case.

The circuit court was also troubled by the lack of specific detail regarding a declaration of termination of employment.  In addition to Joe Sinklair's testimony cited in the above findings, it is evident that as of July 11, 2009, both the employer and the employee knew the employer had no suitable employment to offer the employee, and that of necessity she was being laid off.  (2)

The commission inferred that due to its understanding of the ramifications of a termination versus a quitting, the employer desired to characterize the termination as a "resignation."  (See the employer's letter of September 15, 2009, found at Hearing Exhibit 4).  However, as noted in the above commission findings, when an employer no longer has work available for an employee who desires continued employment, a severance of the employment relationship in the form of a layoff occurs.  See A. O. Smith Corp. v. ILHR Dept., 88 Wis. 2d 262, 266-67, 276 N.W.2d 279 (1979).  A layoff constitutes a termination of employment (Id.).  The employee's layoff was effective as of July 11, 2009, and she appropriately initiated a claim for unemployment insurance benefits the following day.


Attorney Richard Westley
Attorney Scott L Schroeder
G G Barnett Transport, Inc. (Juneau, WI)

Appealed to Circuit Court.  Affirmed, November 9, 2011.  [Summary of Circuit Court decision]

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(1)( Back ) The employer's safety manager, Joe Sinklair, testified: "But I informed her that I just didn't have anything that would fit into her - what she needed right now. We looked at possibly bringing her into the office, but we didn't have a position there. About a week or so we had this conversation (sic), we had an opening at a warehouse which was offered to her, but she turned that -.she didn't think she wanted to do that." (Hearing Transcript, p. 20).

(2)( Back ) The employer submitted no credible evidence to refute the employee's credible testimony that due to her vision loss she could not safely perform the warehouse work offered to her on July 10, 2009.


uploaded 2011/11/10