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

JANICE L ROBINSON, Employee

AMERICAN DOWN & AD & T, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 11203885EC


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 makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for over fifteen years as a refurbisher for the employer, a manufacturer of down products. Her last day of work was November 17, 2011 (week 47).

The employee had an infection in her hand in January of 2011 that her doctor stated in a letter could come back if she continued to work with the same products that she had been working with in her employment. The infection had first arisen in about 2008. The employee had given the employer the January of 2011 letter at the time it was written.

The employee quit as of November 17, 2011, because of the infection in her hand. She had not asked for a leave of absence. The employee had not requested a transfer because there was no other department that she could transfer to that would not bring her in contact with the same products that aggravated her condition.

The initial issue to be decided is whether the employee quit her work for the employer for any reason that would permit immediate benefit payment. An employee who quits work for an employer is ineligible for benefits under Wis. Stat. § 108.04(7)(a), unless the quitting falls within a statutory exception to the quit disqualification.

Wis. Stat. § 108.04(7)(c), provides:

Paragraph (a) does not apply if the department determines that the employee terminated his or her work but had no reasonable alternative because the employee was unable to do his or her work, or that the employee terminated his or her work because of the verified illness or disability of a member of his or her immediate family and the verified illness or disability reasonably necessitates the care of the family member for a period of time that is longer than the employer is willing to grant leave; but if the department determines that the employee is unable to work or unavailable for work, the employee is ineligible to receive benefits while such inability or unavailability continues.

The employee provided unrebutted testimony, and supporting documentation, that her doctor indicated that her medical condition would persist if she continued to work for the employer. The condition had existed for over three years. The employee's doctor advised her to seek other employment. Further, the employer was aware of the employee's condition and her doctor's belief that her condition would persist if she continued working for the employer. The employee's testimony is sufficient to find that she was unable to do her work.(1) A leave of absence in this case was not a reasonable alternative to quitting. Finally, the employee testified that there was no other work that she could perform for the employer that would allow her to avoid contact with down, which was contributing to her medical condition. The employee had worked for the employer for 15 years making it reasonable to infer that the employee had personal knowledge of whether there was work that could be performed for the employer without being exposed to down. The employer did not appear at the hearing to rebut the employee's claim.(2)

The final issue is whether the employee is able to work and available for work. Wisconsin. Admin. Code § DWD 128.01(3)(a) provides:

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. During any week, a claimant is not able to work if the claimant is unable to perform suitable work due to a physical or psychological condition. In determining whether the claimant is attached to the labor market and able to perform suitable work, the department shall consider all factors relevant to the circumstances of the case, which may include the following:

1. The claimant's usual or customary occupation.

2. The nature of the restrictions caused by the claimant's physical or psychological condition.

3. Whether the claimant is qualified to perform other work within the claimant's restrictions considering the claimant's education, training, and experience.

4. Occupational information and employment conditions data and reports available to the department showing whether and to what extent the claimant is able, within his or her restrictions, to perform suitable work in his or her labor market area.

The employee has a 20-pound weight restriction in addition to her sensitivity to down. The employee is not able to work in her usual or customary occupation. However, based on her experience, the employee is qualified to perform other work. The employee has previous experience in sales, as an office worker, and as an anesthesia technician. She is able to perform such work with her restrictions.

The commission therefore finds that in week 47 of 2011, the employee voluntarily terminated her work for the employer within the meaning of Wis. Stat. § 108.04(7)(c) and that she is able to work and available for work.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 47 of 2011, 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 employee for work performed for the employer prior to the quitting will be charged to the fund's balancing account.

Dated and Mailed May 31, 2012

 BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

MEMORANDUM OPINION

The commission did not consult with the ALJ who presided at the hearing regarding his impressions of witness credibility or demeanor. The commission does not reverse the ALJ based on credibility but because it reached a different conclusion as to the sufficiency of the evidence provided by the employee to meet her burden of proof.


robinja . urr : 132 : 1

cc: Attorney Ronald M. Fitzpatrick

 

 


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Footnotes:

(1)( Back ) See, Nelson Industries Inc. v. LIRC, No. 92-CV-0146 (Wis. Cir. Ct. Dane County Dec. 21, 1992)(even if a contested medical report was disregarded the employee's testimony supported the finding that he was unable to do his work).

(2)( Back ) See, Christopher v. Ho Chunk Nation, UI Dec. Hearing No. 97005417 (LIRC Feb. 27, 1998)(employee exhausted alternatives to quitting where there was no evidence that any position would have been found, and the employer did not indicate any position it could have given the employee, that would have accommodated his need for a smoke-free environment).