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


JENNIE L CARTER, Employe

ADVANCE PRODUCTS CORP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00000918MD


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 the employer, a manufacturer of metal parts, for approximately five years as a tool polisher. She quit her job effective November 27, 1999 (week 48).

The employe quit in order to move to Washington State to care for her elderly mother, who recently underwent major gastric surgery and suffered a heart attack. The employe moved into her mother's home, where she performs cooking and housekeeping services for her mother, assists her in bathing and other activities of daily living, and provides post-surgical care. The employe's father is deceased and her siblings have personal obligations which render them unavailable to provide live-in care for her mother. Her mother's physician has advised the employe that it is unlikely her mother will ever be able to live alone again.

The 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 or because of the health of a member of her immediate family, and where she remains generally able to work and available for work after the quitting. Wis. Stat. § 108.04(7)(c).

The evidence adduced at the hearing established that the employe's mother requires live-in care for an extended duration of time. The employe contended that she had no reasonable alternative but to quit her job in order to provide that care, as she was the only family member who was in a position to do so. The commission agrees that, given the circumstances of this case, the employe's quitting falls within the purview of Wis. Stat. § 108.04(7)(c).

The commission, therefore, finds that in week 48 of 1999 the employe terminated her employment with the employer because of the health of a member of her immediate family and did not have a reasonable alternative short of quitting, within the meaning of Wis. Stat. § 108.04(7)(c).

The employe testified that she suffers from chronic fatigue syndrome, but has been released to return to work by her doctor. She indicated that, upon her move to Washington State, she sought part-time employment, but subsequently became available for full-time work. Based upon the foregoing, the commission is unable to determine whether and when the employe became able to work and available for work, within the meaning of Wis. Stat. § 108.04(2)(a) and Wis. Admin. Code § DWD 128.01. This matter is, therefore, remanded for further hearing and a new decision with respect to the employe's availability for work.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is eligible for benefits beginning in week 48 of 1999, provided she is able to work and available for work and is otherwise qualified. This matter is remanded for further proceedings consistent with this decision.

Dated and mailed May 10, 2000
carteje.urr : 164 : 1   VL 1023.13

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The commission did not confer with the appeal tribunal regarding witness credibility and demeanor. The commission's reversal is not based upon a conflicting assessment of the credibility of the witnesses, but is the result of a differing interpretation and application of the law to essentially the same set of facts as that found by the appeal tribunal.

The appeal tribunal found that the employe did not exhaust her reasonable alternatives to quitting because her mother could have gone into a nursing home or could have signed her house over to the state in order that she might become eligible for home health care. However, the "quit unable" section of the statute does not require the employe to exhaust all alternatives before quitting, but only those alternatives that are reasonable. The commission does not consider it reasonable to require an employe to place a parent in a nursing home or to encourage that parent to relinquish her assets so that she might become eligible for home health care. (1) Although there are generally a variety of care alternatives available, the law does not contemplate that a worker exhaust every such alternative before quitting a job. Where, as here, a parent requires live-in care for an extended period of time, the commission does not consider it unreasonable that such care would be provided by the employe.

cc: ADVANCE PRODUCTS CORP


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Footnotes:

(1)( Back ) The commission also notes that these would appear to be alternatives available to the mother, rather than the employe. The evidence does not establish that the employe had the ability to control her mother's decision to stay in her own home and to retain title to her house.