Wis.LIRC UC Decision: Kienow, Dawn - April 24, 2001 - VL 1023.10 - Health of Employe or Family Member - "His/Her work", unable to do; VL 1023.20 - Health of Employe or Family Member - reasonable alternative to quitting - seeking a leave of absence is not a "reasonable alternative" to quitting when it is clear that such a leave would have no effect on the underlying medical condition which makes the employee unable to do her work

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

DAWN M KIENOW, Employee

WHITE TORNADO, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00609402WK

On October 24, 2000, the Department of Workforce Development issued an initial determination which held that the employee's quit of employment with the employer was not for a reason allowing for immediate eligibility for unemployment insurance. The employee filed a timely request for hearing, and hearing was held on December 5, 2000 in Waukesha, Wisconsin before a department administrative law judge. On December 6, 2000, the administrative law judge issued an appeal tribunal decision affirming the initial determination. The employee filed a timely petition for commission review of the adverse appeal tribunal decision and, by February 1, 2001 Order, the commission remanded the matter for additional hearing. That hearing was held on April 4, 2001; the matter is now again before the commission and 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 employee worked three days as a cleaner for the employer, a firm providing residential and commercial cleaning services. Her last day of work was October 6, 2000 (week 41), at which time she quit the employment because she could not do the work. The issue is whether the employee's quit was for a reason allowing for immediately eligibility for unemployment insurance. The commission concludes that the quit falls under the medical necessity exception, Wis. Stat. � 108.04(7)(c), and so reverses the appeal tribunal decision.

The employee has multiple vertebral subluxations of the spine, which cause headaches, neck pain, numbness in arms and hands, back pain, and weakness. The employee is restricted to light work and must avoid climbing. She can occasionally perform stooping, crouching, crawling, or kneeling activities. Based upon the employee's previous 20 years' employment in sedentary office-clerical work, and her family history of arthritis, the employee would be unable to perform cleaning work in a commercial setting on a long-term basis.

Generally, an employee who quits employment is ineligible for unemployment insurance until he or she meets the qualification requirements of Wis. Stat. � 108.04(7)(a). An exception to this quit disqualification is 108.04(7)(c), the so- called quit/medical necessity exception. Pursuant to this exception, an employee may quit employment without penalty if the employee had no reasonable alternative to the termination because the employee was unable to do his or her work. Based upon the medical evidence adduced at the remand hearing, the commission must conclude both that the employee was unable to do the cleaning work in question, and that there was no reasonable alternative to quitting available to her. The evidence easily establishes that she could not do the work. It also establishes that, whenever she would do this work, she would be subject to the same injuries and trauma she experienced in her first, and only, three days of employment. Such usual alternatives to a quit under this section as a leave of absence thus would be unavailing, as a short-term leave of absence would have no effect upon the employee's underlying medical conditions. Indeed, having not previously performed such work, she lasted only three days. It is unlikely most employers would grant the employee the limited work schedule she would have to have, in order to be able to perform this kind of work at all.

The commission therefore finds that, in week 41 of 2000, the employee terminated her work with the employer because the employee was unable to do that work and had no reasonable alternative, within the meaning of Wis. Stat. � 108.04(7)(c), but that the employee still was able to work and available for work on the general labor market at that time.

DECISION

The appeal tribunal decision is reversed. Accordingly, the employee is eligible for unemployment insurance beginning in week 41 of 2000, if otherwise qualified. If the employer is subject to the contribution requirement of the Wisconsin Unemployment Insurance Law, any benefits payable to the employee based upon work performed for the employer prior to the quitting will be charged to the Unemployment Reserve Fund's balancing account.

Dated and mailed April 24, 2001
kienoda . 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's reversal is not based upon a differing credibility assessment from that made by the administrative law judge. Rather, the reversal is based upon evidence adduced at the remand hearing, evidence obviously not available to the administrative law judge when he issued his decision.

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uploaded 2001/05/09