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

ROBERT G ELLEFSON, Employee

MARATHON MAIL SERVICE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 11005186MW


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 federal government requires individuals operating commercial vehicles in interstate commerce to hold a valid commercial driver's license (CDL) and to meet certain physical qualifications as set forth by the U.S. Department of Transportation (DOT), Federal Motor Carrier Safety Administration (FMCSA). If a medical examiner determines that a driver is fit to drive and is also able to perform non-driving responsibilities as may be required, the medical examiner signs a medical certificate which the driver must carry with his or her license. Under current regulations, a medical certificate is good for two years, unless the driver has a medical condition that does not prohibit driving but does require more frequent monitoring.

The employee worked for 12 years as a part-time commercial truck driver for the employer, a trucking company. He worked every other Saturday. His last day of work was October 1, 2011 (week 40). The employment relationship ended on October 5 (week 41).

The employee is required to have a valid CDL to drive the employer's trucks. The employee has a valid CDL. He has been driving commercial vehicles for more than 50 years. In August 2011, the employer reminded the employee that his medical certificate would expire in early October. The employee had an appointment for a physical examination on September 21, 2011. At that time, the employee's doctor noted that the employee had a history of CVA (cerebrovascular accident, i.e. a stroke) with no neurology follow-up, a history of CAD (coronary artery disease) with stent placement, a history of not taking prescribed meds, and a loss of limb with SPE certification. The doctor would not re-certify the employee as fit to drive a commercial vehicle until he was examined by a neurologist, a cardiologist, and an orthopedist. Because the employee was not able to see all of those doctors before October 5, his medical certificate expired.

The employer was aware that the employee's doctor would not re-certify the employee as meeting the FMCSA medical standards based on his September 21, 2011, physical examination. The reason given was that there were several things that the employee needed to do. Due to patient privacy concerns, the employee's doctor did not provide additional or more specific information to the employer.

On October 4, 2011, the employer sent the employee a certified letter, informing him that, effective October 5, his employment would end because he was no longer DOT-qualified to drive. The employee was informed that he may reapply when he obtained a new physical. The employer confirmed that the only reason the employee was no longer driving for the employer is because the employee did not have a valid medical card (certificate).

The employee was medically cleared on October 12, 2011, to drive for one year, if wearing corrective lenses and has an SPE (skill performance evaluation) form. The employee promptly sent copies of his medical certificate and his physical examination documents to the employer, showing that he had been medically cleared to drive for one year. However, the employer concluded, based on its reading of the final page of the physical examination form, that the employee did not pass his physical because he did not have an SPE done. A copy of an SPE was not included with the documentation. The employer concluded that, because the SPE was still missing, the employee was unqualified to drive commercially. The employer did not know whether the employee had previously been required to have an SPE.

FMCSA regulations provide that a person is physically qualified to drive a commercial motor vehicle if that person has no loss of a foot, a leg, a hand, or an arm, or has been granted a skill performance evaluation certificate. FMCSA § 391.41(b)(1). An SPE certificate shows that the driver can operate a commercial motor vehicle properly and that the amputee condition does not interfere with the safe operation of the vehicle. FMCSA § 391.49. A driver who qualifies for a medical card by virtue of having obtained a medical variance from FMCSA, in the form of an exemption letter or a skill performance evaluation certificate, must have on his or her person a copy of the variance documentation when on-duty. FMCSA § 391.49(a)(1)(ii). According to the Medical Advisory Criteria for Evaluation, 49 CFR Part 391.41, if a driver is found otherwise medically qualified (§ 391.41(b)(3) through (13)), the medical examiner must check on the medical certificate that the driver is qualified only if accompanied by a SPE certificate.

After submitting his medical documentation to the employer, the employee discussed returning to work. The employer told the employee that he needed an SPE before it would rehire him. The employer would not allow the employee to use one of its trucks to complete an SPE. The employee would have had to rent, at his own expense, a commercial vehicle to complete the test. The employee was unwilling to do so, because he was not guaranteed rehire even if he passed the test. It was estimated that the cost to rent a truck would be about $100.

Beginning in week 41 of 2008, the week of separation, the employee received full weekly unemployment benefits. He had had an open claim for unemployment benefits based on other, seasonal employment and had been receiving partial unemployment benefits while working for the employer.

In determining the employee's eligibility for benefits following the separation, the department found that the employee's employment was terminated by the employer in week 41 of 2011 because he was unable to do suitable work otherwise available with the employer. The employee, however, was able to work and available for work in the general labor market. Benefits were allowed. The employer filed a timely appeal.

Following a hearing on the matter, an ALJ reversed the department's determination and denied benefits. The ALJ found that the employee's employment was terminated in week 41 of 2011 because the employee had lost a license issued by a governmental agency necessary to perform his customary work for the employer and that the employee's license was not renewed due to the employee's fault. The ALJ specifically found that, even though the employee still had a valid commercial driver's license, because he was not legally able to drive the employer's vehicle without a valid medical card the loss of license provision, Wis. Stat. § 108.04(f), applied. The employee's loss of license was found to be due to his own fault, because the employee refused to pay $100 to undergo a skills performance evaluation, a necessary step to continue his employment.

Wisconsin Stat. § 108.04(f) provides:

If an employee is required by law to have a license issued by a governmental agency to perform his or her customary work for an employer, and the employee's employment is suspended or terminated because the employee's license has been suspended, revoked or not renewed due to the employee's fault, the employee is not eligible to receive benefits until 5 weeks have elapsed since the end of the week in which the suspension or termination occurs or until the license is reinstated or renewed, whichever occurs first. The wages paid by the employer with which an employee's employment is suspended or terminated shall be excluded from the employee's base period wages under s. 108.06(1) for purposes of benefit entitlement while the suspension, revocation or nonrenewal of the license is in effect.

The commission does not agree that Wis. Stat. § 108.04(f) applies in this case. As noted by the ALJ, the employee has always had a valid commercial driver's license. It was not suspended, revoked, or not renewed. It was only the employee's medical card, which he is required to carry with his CDL, which expired before he was able to renew it. The employee had an appointment for a physical examination two weeks prior to his medical card's expiration date. The employee's doctor would not recertify him as medically fit to drive a commercial vehicle until the employee was also examined by a cardiologist, a neurologist, and an orthopedist. The employee was unable to schedule appointments with those doctors before his card expired. Under the circumstances, it cannot be concluded that the nonrenewal of the employee's medical certificate was due to his fault. A loss of license due to a medical condition is not the fault of an employee. See, e.g., Gahart v. J.B. Hunt Transport Inc., UI Dec. Hearing No. 04610846WK (LIRC May 20, 2005).

The employee was certified as meeting DOT medical standards as of October 12, 2011. The employee's doctor's written comments were: "10/12/11 Mr. Ellefson has been medically cleared by neurology, cardiology and has had ortho complete an SPE. He is now cleared to drive if wearing corrective lenses and has SPE form for 1 year." As required by FMCSA regulations, the employee's doctor checked on his medical certificate that the employee was qualified to drive for one year as long as he is wearing corrective lenses and has an SPE form. 49 CFR Part 391.41. The doctor's notes confirmed that an orthopedist completed an SPE for the employee.

Moreover, the employee testified that he does not need to carry an SPE because he was "grandfathered in." The employee's motor vehicle driving abstract states that he has an artificial right hand and that he was "grandfathered for federal medical purposes" on July 28, 1996.

Between October 5 and October 12, 2011, the employee could perform any suitable work in his labor market that did not require him to possess a current medical examiner's certificate.

Finally, the employee's separation from employment could not have been due to his refusal to rent a vehicle to perform a skills performance examination. The employer had severed the employment relationship more than a week before it became concerned about an SPE after receiving and reviewing the employee's physical examination documents. Although the employee had been driving the employer's trucks for 12 years with an artificial right hand, the employer did not know whether the employee had previously been required to have an SPE.

An employee is presumed eligible for unemployment benefits. The party resisting payment must prove disqualification. Kansas City Star Co., Flambeau Paper Co. Div. v. DILHR, 60 Wis. 2d 591, 602 (1973). The employer in this case is resisting payment. It did not meet its burden to prove disqualification.

The commission therefore finds that, in week 41 of 2011, the employee's employment was not terminated by the employer because a license issued by a governmental agency to perform the employee's customary work was not renewed due to the employee's fault, pursuant to Wis. Stat. § 108.04(1)(f).

The commission further finds that, in week 41 of 2011, the employer terminated the employee's employment because the employee was unavailable for or unable to perform suitable work otherwise available with the employer, within the meaning of Wis. Stat. § 108.04(1)(b), but that the employee was able to work and available for work on the general labor market.

DECISION

The decision of the administrative law judge is modified to conform to the above findings of fact and conclusions of law and, as modified, is reversed. Accordingly, the employee is eligible for unemployment benefits beginning in week 41 of 2011, if otherwise qualified. There is no overpayment as a result of this decision.

Dated and Mailed June 13, 2012

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

MEMORANDUM OPINION

The employee petitioned for commission review of the adverse appeal tribunal decision. In his petition, the employee questions how the overpayment amount of $3,410 was calculated. That amount is the sum of the unemployment benefits paid to the employee for weeks 41 through 52 of 2011. However, as a result of the commission's decision, there is no overpayment.

The employer submitted a reply to the employee's petition. The employer reiterated its position that an SPE had not been completed. It referred the commission to a handwritten note from the employee saying that he had sent in all paperwork to the DOT to obtain an SPE. Nevertheless, as explained in the commission's decision, supra, there was some confusion as to whether the employee actually needed a road test and an SPE from the DOT.

The employer testified that the employee needed to go to DOT for a road test and have DOT complete an SPE certificate. The employer notified the employee of the same. Yet, FMCSA regulations provide otherwise. The FMCSA requires a driver seeking to renew an SPE certificate to submit a list of motor carriers worked for in the past two years, a copy of the results of a current medical examination and medical card, a medical evaluation summary completed by an orthopedic surgeon, and a copy of the driver's state motor vehicle driving record for the past two years. New drivers are required to undergo a road test and have DOT complete an SPE certificate.

The doctor's notes, to which the employer referred in its petition, state that, as of October 12, 2011, the employee "has had ortho complete an SPE." In addition, it appears that the employee may not be required to obtain periodic SPEs due to the loss of his right hand, or may not be required to carry an SPE on his person while driving, because his disability was grandfathered in for federal medical purposes.


ellefro . urr : 152 : 5

NOTE: The commission did not consult with the administrative law judge before reversing her decision, because its reversal is not based upon a differing view as to the credibility of witnesses. Instead, the commission reversed her decision based upon a differing conclusion as to what the hearing record in fact established and upon a differing interpretation of the relevant law.

 


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