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

LAVONNE S WESTEDT, Employe

REEDSBURG AREA MEDICAL CENTER, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98004484BO

An administrative law judge 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 administrative law judge. Based on the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked for the employer, a medical center, for about eight months as a patient registration assistant. Her last day of work was July 16, 1998, at which time she commenced a leave of absence.

Prior to the employe's last day of work, her daughter had been receiving medical treatment at the employer's facility, where the employe was told the doctors believed she had an ulcer. The employe's daughter was in and out of the employer's facility on many occasions and became progressively more ill. On or about July 16, 1998, the employe transferred her daughter to a different hospital, where it was determined that she had a ruptured appendix and an appendectomy was performed. However, by this point the appendix had disintegrated and infection had spread. On July 16, 1998, the employe commenced a personal leave of absence to be with her daughter, who was in intensive care following her surgery. Tragically, the employe's daughter's condition deteriorated, and she passed away on August 26, 1998.

On or about September 9, 1998, the employer telephoned the employe to ask when she could return to work, and the employe indicated she was not sure. The employer asked the employe to return to work on September 21, but the employe stated that she needed a few days to think about it. On September 11 the employe notified the employer that she was having a hard time dealing with her personal loss and did not think she would be ready to return by September 21. The employer told the employe that it needed to fill her position by that date, and that if the employe did not return by September 21 it would do so and would put her on a "leave," whereby she could apply for any open positions when she was ready to return. The employe did not return to work for the employer thereafter.

At the hearing the employe indicated that, based upon the traumatic circumstances described above, she could never again work in a medical setting. In late September she accepted a part- time job filling orders at a company involved in mail order sales, with an expectation that it would ultimately lead to a full-time position. She filed a claim for benefits in week 40 of 1998.

The first question to decide is whether the employe quit or was discharged. The employe could have kept her job with the employer had she been willing or able to return to work by September 21. However, the employe chose not to do so, which resulted in the termination of the employment relationship. Under these circumstances, the separation is best viewed as a voluntary quit.

The next question to decide is whether the employe's quitting was for any reason permitting the immediate payment of benefits. The statutes provide for the immediate payment of benefits where an employe has terminated her work but had no reasonable alternative because she was unable to do her work, and where she remains generally able to work and available for work after the quitting. Wis. Stat. § 108.04(7)(c). This provision of the statute encompasses both physical and mental incapacity.

Following the tragic events described above, which culminated in the death of her child, the employe was mentally unable to return to work for the employer. The employe credibly explained that she was having a difficult time coping with her loss, and that there would be no way she could function in her job for the employer or in any medical setting.

The commission, therefore, finds that in week 39 of 1998 the employe terminated her employment with the employer because she was unable to do that work and did not have a reasonable alternative short of quitting, within the meaning of Wis. Stat. § 108.04(7)(c), and that the employe was able to work and available for work on the general labor market as of the week she initiated her claim, within the meaning of Wis. Stat. § 108.04(2)(a) and Wis. Admin. Code § DWD 128.01.

DECISION

The decision of the administrative law judge is modified to conform with the foregoing findings and, as modified, is affirmed. Accordingly, the employe is eligible for benefits beginning in week 39 of 1998, provided she is otherwise qualified.

Dated and mailed: March 3, 1999
westela.urr : 164 : 3  VL 1023.10

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

In the petition for commission review the employer argues that no medical evidence was presented at the hearing and that no competent evidence of negligence was before the administrative law judge. The employer argues that the appeal tribunal decision is "totally fallacious" and must be reversed. The commission does not find the appeal tribunal decision to be fallacious, since the employe was competent to testify about the facts and circumstances surrounding her decision to leave her employment with the employer. However, the commission has rewritten the decision to characterize the employe's quitting as a "quit unable" rather than as a quit with good cause attributable to the employer. The employer should also note that no finding of fact or law, determination, decision or judgment made with respect to the rights or liabilities under the unemployment statute is admissible or binding in any action or administrative or judicial proceeding in law or in equity not arising under that statute. See Wis. Stat. § 108.101(1).

cc: REEDSBURG AREA MEDICAL CENTER

ATTORNEY JAMES P GERLACH
LAROWE GERLACH & ROY SC

PAMELA I. ANDERSON, COMMISSIONER (Dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. This is a tragic case but from this record, I am unable to make any determination as to when the employe's daughter's appendix ruptured. I do not know if her daughter had an ulcer problem at anytime because there are no medical records from either place to help us make a determination of how the employe's daughter died. Therefore, I do not believe that we can make the finding that the administrative law judge did that the employe had good cause attributable to the employer for the employer's negligence in the treatment of her daughter.

I also believe that we need medical information to determine when the employe was able to return to work. The employe testified that she would not be able to work in a medical setting not just with this employer in the future. I believe that we need medical testimony as to when the employe would be able to return to work after the loss of her daughter and whether she would ever be able to work in a medical setting. I do not believe the employe has shown that she had no alternative but to quit. The employer suggested that she could send the employer a letter asking for personal leave for the rest of September and all of October if that was necessary. The employe quit instead.

For these reasons, I dissent.

Pamela I. Anderson, Commissioner

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