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


MARTHA L SCHOEN, Employe

C K RESTAURANTS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98003867WR


On September 3, 1998, the Department of Workforce Development issued an initial determination which held that the employe quit but had no reasonable alternative because she was physically unable to do her work. The employer filed a timely request for hearing on the adverse determination, and hearing was held on October 13, 1998 in Wisconsin Rapids, Wisconsin before a department administrative law judge. On October 16, 1998, the administrative law judge issued an appeal tribunal decision reversing the initial determination. The employe filed a timely petition for review of the adverse appeal tribunal decision, and the matter now is ready for disposition.

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

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked approximately two years, most recently as a restaurant manager, for the employer. In early July of 1998, she gave notice of intent to quit, and her last day of work was July 24, 1998 (week 30). The commission concludes that the employe had no reasonable alternative to terminating her work because she was unable to do her work, within the meaning of Wis. Stat. § 108.04(7)(c). The commission therefore reverses the appeal tribunal decision.

The employe had worked at the employer's Black River Falls restaurant. When that closed, the employe saw a doctor for shoulder pain she had been having for several months. The doctor placed restrictions on her, including not lifting over her head and not lifting more than approximately 20 pounds. The employe transferred to the employer's Marshfield restaurant, effective June 3. At the end of June, since she was not healing properly, a Doctor Leavitt increased her restriction to no use of her right arm, and had her wear a sling while at work. In early July, the employe gave two weeks' notice, because she believed the employer was continuing to require her to do work beyond her medical restrictions.

Specifically, the employe would be told to help in the kitchen, but the kitchen microwaves were above the employe's head and she could not safely take things out of the microwave with only one hand. The employe also was told to help out in the dining room, which meant bussing tables, which required the use of both arms. Although the employe did not ask for a medical leave of absence, that could not constitute a reasonable alternative to quitting the employment in this case, for the following reason. The employe's supervisor had asked the employer's regional director if the employe could be off work while her arm healed. He indicated that she could not. In addition, he would not return the employe's telephone calls, when the employe attempted to contact him directly.

The commission therefore finds that, in week 30 of 1998, the employe terminated work with the employer because the employe was unable to do that work and had no reasonable alternative, within the meaning of Wis. Stat. § 108.04(7)(c), but that the employe was able to work and available for work on the general labor market at the time the unemployment benefit claim was begun in week 33 of 1998.

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is eligible for benefits beginning in week 30 of 1998, if she is otherwise qualified. If the employer is subject to the contribution requirements of the Wisconsin Unemployment Insurance Law, any benefits payable to the employe based on work performed for the employer prior to the quitting will be charged to the fund's balancing account.

Dated and mailed: February 2, 1999
schoema.urr : 105 : 6  VL 1023.10   VL 1023.20  VL 1023.25

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

NOTE: The commission conferred with the administrative law judge before determining to reverse the appeal tribunal decision in the case. He had reasoned that the employer had not directed the employe to perform duties exceeding her medical restrictions, as much as the employe had taken it upon herself to do as much work as possible. The supervisor testified, though, that when the employe came in with additional restrictions (no use of her right arm), he told the employe that if she were going to be there, she was going to work. The supervisor also challenged the validity of the restrictions the employe had received from her doctor. Finally, the supervisor did not specifically challenge the employe's testimony that she would have to bus tables, and thus use her right arm in violation of her medical restrictions. For these reasons, the commission cannot conclude, as the administrative law judge did, that the employer had not directed the employe to perform duties exceeding her medical restrictions.


PAMELA I. ANDERSON, COMMISSIONER (dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. The majority found that the employer required the employe to work beyond her restrictions. They especially point to the time when the employer asked her to help in the dining room for about one hour until another person came in. The employe testified I bussed tables, delivered food, and greeted and seated people. I could take cash, seat and greet people with one arm. I could not bus tables. I was told that I had to help in the dining room. I was told the tables had to be cleaned up and things had to be taken care of. I was told to stay until we got another waitress there. I took that to mean that I had to bus tables."

The employe did not say I can't do some of the duties. The employer did not pressure the employe in any way to exceed her restrictions. The employe refused to do work in the freezer and the employer did not complain. I agree with the administrative law judge that the employe took certain duties upon herself which were beyond her restrictions but not because the employer required her to exceed her restrictions. The employe testified that "Mr. Carlson said he did not understand why they would not let me take time off to let it heal." There is no indication in the record that the employe ever asked for any time off. The comment that there were things I could do, and I did not have to be off work, does not indicate that the employe could not have a leave of absence. It merely indicates that there was work the employe could do within her restrictions. She was a unit manager and only had to fill in at waitress work or cook work when the employer needed extra help.

The employe's medical restrictions were originally light duty with no lifting over 20 pounds and not to lift above her head with her right arm. When she did not improve, the doctor told her to wear a sling on her right arm. She also testified that "While I was not at work, I was not to have my arm in a sling. The sling was meant to remind my bosses that I could not use my right arm."

I was impressed by the fact that the employe did not even see a doctor until her employment at Black River Falls was over. I believe that the employe did work beyond her restrictions some of the time but it was her choice and not because the employer required her to exceed her restrictions.

For these reasons, I agree with the administrative law judge and would affirm the appeal tribunal decision.

Pamela I. Anderson, Commissioner

 

cc: COUNTRY KITCHEN


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