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


ROSLYN L PARKER, Employe

WISCONSIN BELL INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99602751MW


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 as a service representative for the employer, the telephone utility. Her last day of work was November 4, 1998 (week 45).

In April of 1998, the employer notified the employe and all workers at a location in Milwaukee that all positions performing that job would be transferred to Appleton in November of 1998. In September of 1998, the employe accepted a position in Appleton and was paid a relocation allowance. The employe attempted to claim disability payment and/or obtain accommodations in her work assignment due to a physical problem with her left wrist between her acceptance of the position in Appleton and her last day of work. The employe used a combination of disability and accrued vacation, because after November 4, 1998, she was unable to continue working because of her medical problems. She did not report to Appleton at anytime on or following November 15, 1998 (week 47), the expected date of the transfer. The employe applied for, and was denied, both long term disability benefits and absence under the Family Medical Leave Act with notification given her on or about January 5, 1999 (week 2). The employe had previously commenced work with a temporary employing unit in December of 1998 while awaiting the result of her applications through the employer.

The first issue is whether the employe terminated her employment with the employer, or was discharged.

The employer closed its location in Milwaukee, however, the employe was offered the opportunity to continue working for the employer, if she would move to or commute to Appleton. In fact, the employer may have been able to accommodate her restrictions, had she been able to report for work in Appleton. Thus, the employe severed the employment relationship, by not accepting the transfer to Appleton. The employe was not allowed to travel or drive. The employe had also been treating for her condition in Milwaukee. The employe was not able to relocate for medical reasons, and needed to stay in Milwaukee. The employe did not apply for positions in Milwaukee because she did not have enough seniority to obtain such a position. The employe's failure to report to Appleton on or following November 4, 1998 (week 45) therefore was inconsistent with a continuation of the employment relationship, and constituted a quitting of her employment. The employe's termination of employment was effective on December 15, 1998 (week 51), the approximate date when she commenced work with other employing units.

However, under the circumstances, the employe quit because she was physically unable to perform her work with the employer and had no reasonable alternative. The employe's restrictions include a prohibition against repetitive work, and if she works with a computer she is limited to four hours per day. The employe has been working at a variety of part time jobs since leaving the employer, including in week 51. Thus the employe was able to work and available for work in week 51 of 1998.

The commission therefore finds that in week 51 of 1998, the employe quit her employment with the employer because she had no reasonable alternative, within the meaning of Wis. Stat. § 108.04(7)(c) and that she was able to work and available for work as of that week.

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 51 of 1998, if she is otherwise qualified.

Dated and mailed November 3, 1999
parkero.urr : 145 : 6 VL 1023.10  VL 1015 VL 1080.266

/s/ 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 modified his decision as a result of reaching a different legal conclusion when applying the law to the facts found by the ALJ.

NOTE: If the employer is subject to the contribution requirements of the Wisconsin Unemployment Compensation 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.

cc: CONTINENTAL INVESTIGATIONS & SEC LTD

FAITH GILLESPIE
HEARING DECISION ANALYST
C/O THE FRICK CO


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