JANICE K. KOUIMELIS, Employee

DENNYS RESTAURANT 6318, Employer

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:

The employee worked in the restaurant business for 45 years. Her employment for the employer began in March 2007. Initially, she worked 45 to 50 hours per week as an assistant manager. The job involved extensive standing and walking. She seated customers and bused tables when necessary. Over time, she became less able to tolerate the physical demands of the job. In particular, she experienced increasing pain in her left ankle. She tried a variety of braces, and wore a walking cast on bad days, but found it hard to work while wearing the cast.

In July 2011, because the physical demands of the position were taking too much of a toll on her, she asked to step down to a unit aide position, working about 32 hours per week. This request was granted. The unit aide job, like the assistant manager position, required her to be on her feet continuously. Her rate of pay as a unit aide was $12 per hour.

In March 2012 the employee told her manager that she was going to quit because she was struggling and in pain when performing her job. She gave the manager a written notice that her last day would be April 2, 2012. It did not cross her mind to ask the manager for a leave of absence. There were no other positions at the restaurant that required any less standing or walking than the position she held.

The initial determination on the employee's claim found that the employee had quit for a personal reason, and denied benefits. She appealed, and was provided with a medical report form, called a UCB-474, to be completed by her health care provider in preparation for the appeal hearing.

Unfortunately, the health care provider who received the UCB-474 failed to answer several of the questions on the form, including whether, as of April 2, 2012, the employee was able to do her normal work for the employer, and whether she was generally able to work.

The appeal tribunal found that the employee had quit her employment, within the meaning of Wis. Stat. § 108.04(7)(a), and that the exception to that provision allowing immediate payment of unemployment benefits to an employee who quits due to health problems did not apply, because the employee had failed to present medical documentation showing that she had no choice but to quit, and because she did not explore reasonable alternatives to quitting. The employee petitioned for commission review.

The commission, noting that the employee had made a reasonable attempt to present medical evidence at the hearing through the UCB-474, but that the evidence was incomplete through no fault of the employee, remanded the case to the appeal tribunal, in order to allow the employee another opportunity to submit a UCB-474, and to obtain additional evidence on the employee's work experience, training and education, as well as labor market evidence.

That evidence has now been presented. At the remand hearing, a second UCB-474 was entered into evidence, which indicated that in the opinion of the employee's orthopedic surgeon the employee was unable to perform her normal work duties for the employer as of April 2, 2012. Based on the employee's testimony concerning her physical limitations, work experience, training and education, the administrative law judge generated two labor market reports. They showed that considering the employee's restriction to sedentary work, she was able to perform 185 suitable jobs as a waiter/waitress, and 2,861 suitable jobs as a host/hostess that existed in her labor market. In addition, the employee presented evidence that she had been approved for Social Security Disability (SSDI) and Supplemental Security Income (SSI), having been determined to be disabled as of April 2012.

The first issue for commission review is whether, when the employee terminated her employment in week 14 of 2012, she had no reasonable alternative because she was unable to do her work, under Wis. Stat. § 108.04(7)(c). Generally, the employee must present competent medical evidence of her inability to work. See, Lindsay v. School District of Washburn, UI Dec. Hearing No. 97200655EC (LIRC Jan. 16, 1998); Angelo v. Accurate Alignment and Frame Service, Inc., UI Dec. Hearing No. 95401360AP (LIRC Aug. 11, 1995); Kienow v. White Tornado, UI Dec. Hearing No. 00609402WK (LIRC April 24, 2001). With the second UCB-474 the employee in this case has done so. Furthermore, because of the chronic nature of the employee's condition, it would have been futile for the employee to have asked for a leave of absence as a reasonable alternative to quitting. An employee need not ask for a leave of absence in these circumstances in order to meet the condition of having no reasonable alternative to quitting. See, Robinson v. American Down & AD & T, UI Dec. Hearing No. 11203885EC (LIRC May 31, 2012); Lindsay v. School District of Washburn, UI Dec. Hearing No. 97200655EC (LIRC Jan. 16, 1998).

The second issue for commission review is whether the employee was generally able to work and available to work as of week 14 of 2012. As to general ability to work, Wis. Admin. Code § DWD 128.01(3)(a) reads as follows:

Able to work means that the claimant maintains an attachment to the labor market and has the physical and psychological ability to engage in some substantial gainful employment in suitable work. During any week, a claimant is not able to work if the claimant is unable to perform suitable work due to a physical or psychological condition. In determining whether the claimant is attached to the labor market and able to perform suitable work, the department shall consider all factors relevant to the circumstances of the case, which may include the following:
1. The claimant's usual or customary occupation.
2. The nature of the restrictions caused by the claimant's physical or psychological condition.
3. Whether the claimant is qualified to perform other work within the claimant's restrictions considering the claimant's education, training, and experience.
4. Occupational information and employment conditions data and reports available to the department showing whether and to what extent the claimant is able, within his or her restrictions, to perform suitable work in his or her labor market area.

The labor market reports in evidence support a finding that the employee was able to perform some substantial gainful employment in suitable work despite her physical condition. The employee's eligibility for SSDI and SSI is not necessarily incompatible with eligibility for unemployment benefits. Tunisha A. Perkins, UI Dec. Hearing No. 11605816MW (LIRC Jan. 11, 2012).

The commission therefore finds that in week 14 of 2012 the employee terminated her employment but had no reasonable alternative because she was physically unable to do her work.

The commission further finds that as of week 14 of 2012 the employee was generally able to work and available for work within the meaning of Wis. Stat.
§ 108.04(2)(a) and Wis. Admin. Code ch. DWD 128.

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 14 of 2012, provided she is otherwise qualified.

Dated and Mailed December 4, 2012

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

kouimja . urr : 107 : 5

cc: Denny's Restaurant (Rothschild, WI)

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uploaded 2012/12/14