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

JULIE M SCHOENECKER, Employe

THE TALBOTS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99602228MW

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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed.  Accordingly, the employe is ineligible for benefits in weeks 52 of 1998 through 2 of 1999. The employe is required to repay the sum of $685,  of which $8 is included in an overpayment set forth in another decision, to the Unemployment Reserve Fund.

Dated and mailed July 19, 1999
schoeju.usd : 164 : 5 VL 1023.16

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

In her petition for commission review the employe argues that her quitting should be considered a quit unable, within the meaning of Wis. Stat. § 108.04(7)(c). In support of this argument, the employe encloses a certified medical report, which indicates that she had a restriction on standing and bending. However, the record indicates that the administrative law judge gave the employe ten days after the hearing to submit her medical evidence, and that she failed to do so. While in her petition the employe contends that her doctor did not have enough time to complete the form within the time frame allotted by the administrative law judge, she has failed to explain what steps she took to ensure the form was completed in a timely manner, nor has she alleged that she ever notified the administrative law judge of her inability to submit the form within the time period allowed or sought an extension of that time period. Consequently, the commission is unable to conclude that the employe could not have obtained the documentation in a timely manner had she exercised due diligence, and it sees no reason to reopen the record for consideration of evidence which the employe could have submitted prior to the issuance of the decision.

Moreover, even if the commission were to consider the employe's medical report, that document would be insufficient to establish that her quitting fell within the quit unable exception. The employe's doctor failed to respond to the question asking whether the employe was able to perform work as a retail clerk as of January 5, 1999, indicating only that the employe should limit standing to four hours a day and bending to two hours a day. It is unclear from the form whether this restriction was in effect at the time the employe quit her job, although the employe's hearing testimony suggests it was not. Further, while the employe asserts that the job required more standing and bending than her doctor felt was safe, the record does not establish that the employe's restrictions would have prevented her from performing her job or that her doctor advised her to quit. Finally, even if the employe had succeeded in demonstrating that she was physically unable to perform the job for the employer, the fact remains that she did not seek any adjustment to her work schedule or duties prior to notifying the employer that she quit, and did not request a leave of absence. The employe, therefore, cannot be found to have exhausted her reasonable alternatives to quitting.

For the reasons set forth above, as well as those contained in the appeal tribunal decision, the commission agrees with the appeal tribunal that the employe's quitting did not fall within Wis. Stat. § 108.04(7)(c) or any other statutory exception permitting the immediate payment of benefits. Accordingly, the appeal tribunal decision is affirmed.

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