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


SHELLEY L WINISTORFER, Employe

FV DAIRY LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99401790AP


On August 5, 1999, the Department of Workforce Development issued an initial determination which held that the employe quit but not for a reason allowing immediate eligibility for unemployment insurance. The employe filed a timely request for hearing, and hearing was held on September 8, 1999 in Appleton, Wisconsin before a department administrative law judge. On September 10, 1999, the administrative law judge issued an appeal tribunal decision modifying and affirming the initial determination. The employe filed a timely petition for commission review of the adverse appeal tribunal decision, and the matter now is ready for disposition.

Based upon the applicable law and the records and other evidence in the case, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked approximately a year for the employer, a dairy. She originally worked as a herdsperson, which required her to milk cows occasionally. Milking duties resulted in dermatitis to her arms, despite her use of protective gloves, because of the bleach and iodine used in the milking process. In November of 1998, the employe and employer agreed to a change in the employe's work duties, such that the employe no longer would have to milk cows. In July of 1999, the employer contracted out the duties the employe had been performing, resulting in the separation from employment now at issue. The issue is whether the separation was a quit or a discharge and, if it was a quit, whether the quit was due to medical necessity within the meaning of Wis. Stat. § 108.04(7)(c). The commission agrees with the administrative law judge that the separation was a quit, but concludes that it fell within the requirements of (7)(c) and so reverses in part the appeal tribunal decision.

As indicated above, the employer determined to subcontract out the work the employe performed from November of 1998 until July of 1999. The employer informed the employe in late June of its subcontracting decision and the resulting elimination of the employe's position; also at that time, the employer offered the employe a milking position. The employe rejected that position, citing objections to the employer's methods of operation and some of the employer's staff. The employe did not state that she could not do the milking work because of her physical reaction to the chemicals used in the process. The employe's failure to accept the transfer to the milking position severed the employment relationship and constituted a quit for unemployment insurance purposes, and the commission so finds.

The statutes provides 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 was with good cause attributable to the employer or was within some other statutory exception. The statutes permit a worker to voluntary terminate employment in the case of health problems which make continued employment impossible, but only where the employe has pursued reasonable alternatives short of quitting. The employe was physically unable to perform the milking work offered by the employer, even when wearing protective gloves suggested by her physician. This is because bleach and iodine used in the process would splash above the gloves and onto the employe's arms, causing nummular eczematous dermatitis. The employe's physician specifically instructed the employe to avoid contact with bleach water, iodine, and calf soliva. As indicated above, however, the employe could not avoid contact with those substances notwithstanding her use of protective gloves. (1)

Another criterion for eligibility under the so-called "quit/medical necessity" exception is that the employe exhaust reasonable alternatives to quitting. In this case, the employer had no other positions available to the employe; in this narrow circumstance, the employe's telling the employer of her medical restrictions would have made no difference to the resulting separation. The employer did not have any other positions available for the employe, and the record indicates no other reasonable alternatives to the employe's refusal of the milking position.

The commission therefore finds that, in week 30 of 1999, the employe terminated her work but had no reasonable alternative because she was unable to do her work, within the meaning of Wis. Stat. § 108.04(7)(c).

DECISION

The appeal tribunal decision is affirmed in part and reversed in part. Accordingly, the employe is eligible for unemployment insurance, if she is otherwise qualified.

Dated and mailed December 3, 1999
winissh.urr : 105 : 1  VL 1023.10  VL 1023.20

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision in this case. The commission has found the same facts as did the administrative law judge, but has reached a different legal conclusion regarding the "reasonable alternative" criterion of Wis. Stat. § 108.04(7)(c). The commission's reversal therefore is as a matter of law, and is not based upon a differing credibility assessment from that made by the administrative law judge. As indicated above, the employer had no other work available to the employe; the employe's failure to inform the employer of her medical condition thus could have had no effect upon the resulting separation.

 

PAMELA I. ANDERSON, COMMISSIONER (dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. The employe submitted a certified medical report that indicated that as of July 20, 1999 the employe was able to perform work on a dairy farm and that she was not advised to seek other work. In the comments section, Dr. Patten wrote "Pt was advised to wear gloves during milking. Also recommended avoiding contact with bleach water, Iodine and calf saliva. Patient states she wore the gloves but they irritated the rash."

When the employer offered the employe a milking position, the employe's response was no because she objected to the employer's methods of operation and some of the employer's staff. With these reasons for refusing the milking job and her medical report, I can not find that the employe terminated her work but she had no reasonable alternative. If her medical situation was such that she could not do milking, her doctor should have said that she should seek other work or at the very least avoid milking. He did not say either of those. While I agree the employe quit, I do not believe she has met her burden to establish that she fit within an exception which would allow for the immediate payment of benefits.

For these reasons, I would affirm the administrative law judge's decision.

____________________________________
Pamela I. Anderson, Commissioner


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Footnotes:

(1)( Back ) The dissent asserts that, if the employe's medical situation was such that she could not do milking, her doctor should have indicated that the employe should seek other work. The record indicates, though, that the employe could not do the milking work without suffering injury, even when doing the work according to her physician's restriction (wearing protective gloves). This has to be sufficient to establish one's physical inability to perform the work in question. The unemployment insurance law was not intended to require claimants to choose between unemployment insurance benefits and work which causes injury to that claimant.