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


MARLENE J SCHULTZ, Employe

F & M BANK NEW LONDON, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99400842AP


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 employe worked for a month as a teller for the employer, a bank. She began that work in week 6 of 1999, and quit in week 10 of 1999.

The employe drove 65 miles per day, or 32.5 miles each way, to and from work. She earned $7.00 per hour in her employment as a teller. A labor market analyst's undisputed testimony established that, for similar work in the employe's labor market area paying $7.00 per hour, workers customarily travel 24.18 miles. For similar work in that labor market area, the wage that defines the bottom quartile of wages paid is $6.49 per hour.

The employe previously worked for another employing unit as a WATS phone operator, and was allowed to sit during her work shift. When she took this job as a teller, the assistant vice-president told her that it was important to "look alert" when customers were in the bank. The employe believed that she was not supposed to sit on the stool provided while she was working. The vice-president conceded that most tellers find it uncomfortable to sit on the stools while they are waiting on customers.

From the start of her employment, the employe complained that, at the end of a workday, her back and legs were aching, and she felt "stressed out." The vice- president encouraged her to keep working at the job until she felt more comfortable.

Throughout her employment with the bank, the employe was being treated by a chiropractor for tension headaches, lumbar subluxation, cervical subluxation and muscle spasms. On February 22, 1999, the chiropractor advised her to seek a job that did not require her to stand all day long, or to lift 30-pound bags of money. The employe's physical restrictions are to light physical demand, with occasional stooping, climbing, kneeling and crouching. In the undisputed opinion of the department's labor market analyst, that the employe, with these physical restrictions, was still able to perform in excess of 50 percent of all full-time suitable work in her labor market area.

The issue which must be decided is whether the employe's quitting in week 10 of 1999 was for any reason that would permit the immediate payment of unemployment benefits.

The statutes provide that if an employe terminates his or her employment with an employing unit, the employe's benefit eligibility shall be suspended until four weeks have elapsed since the week of quitting and the employe has earned wages in covered employment equaling at least four times the weekly benefit rate, unless the termination fell within some statutory exception. The employe contended that her quitting fell within a statutory exception to the general quit disqualification and that she was entitled to the immediate payment of benefits. The commission agrees.

Under the law, if an employe terminates his or her work but had no reasonable alternative, the employe is eligible for benefits as long as the employe is still able to work and available for work. The employe in this case testified that she informed the vice-president of her back and neck pain on two occasions, but it was never suggested that she sit while performing her work. The employe also requested a change from a full-time to a part-time schedule, but the employer needed her to work full-time. On February 22, the employe's treating chiropractor told her that she should quit her employment because of the physical symptoms she had been experiencing since starting work with this employer. Under the facts of this case, it must be determined that the employe exhausted all reasonable alternatives prior to quitting her employment.

The "physically unable" exception to the general quit disqualification applies, however, only in cases where the employe remains otherwise able to work and available for work. In this case, expert labor market information established that the employe was able to perform more than 15 percent of suitable work in her labor market area. She was, therefore eligible for unemployment insurance benefits beginning in the week in which she initiated her claim.

In addition, the commission notes that there exists a potential alternative ground for quitting, in that work in the employe's labor market area does not usually require a worker to travel more than 24.18 miles. The employe in this case was required to travel 32.5 miles each way to work. Thus, it is possible the employe could have refused this work because of the distance to work and still have been eligible for benefits.

The commission therefore finds that the employe voluntarily terminated her work in week 10 of 1999, because she was unable to perform her work for the employer and had no reasonable alternative, within the meaning of Wis. Stat. § 108.04(7)(c). As of week 10 of 1999, she was able to work and available for work, within the meaning of that section.

DECISION

The decision of the administrative law judge is modified and as modified is affirmed. Accordingly, the employe is eligible for benefits as of week 10 of 1999, if she is otherwise qualified.

Dated and mailed July 23, 1999
schulma.urr : 145 : 3 VL 1023.10

David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did not discuss witness credibility and demeanor with the ALJ but has modified the ALJ's decision because the commission has determined that the employe's reason for quitting was because she was unable to do her work but had no reasonable alternative. The employer, in its petition for commission review, asserts that stools are provided so the tellers may sit at times. However, as found by the ALJ, it was uncomfortable to use the stools while performing a teller's tasks. The employer further asserts that part-time hours offered by the employer did not coincide with the part-time hours that the employe wished to work, and that she did not ask for any options prior to quitting. However, the employe explained to her supervisor that her back hurt, and asked about reducing her hours. The supervisor did not suggest any modifications for the employe and was unable to grant the employe's request to work fewer hours. Therefore the employe did exhaust reasonable alternatives prior to quitting.

NOTE: 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, and not to the employer's individual account, pursuant to Wis. Stat. § 108.04(7)(h).


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