This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ß 480A.08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-02-1066

 

Richard D. Domingo,

Relator,

 

vs.

 

Little Six, Inc.,

Respondent,

 

Commissioner of Economic Security,

Respondent.

 

 

Filed ≠≠≠December 24, 2002

Affirmed

Harten, Judge

 

Department of Economic Security

Agency File No. 15002

 

Richard D. Domingo, 4303 West 137th Street, Savage, MN 55378 (relator pro se)

 

Linda A. Holmes, Department of Economic Security, 390 North Robert Street, St. Paul, MN 55101 (for respondent)

 

††††††††††† Considered and decided by Klaphake, Presiding Judge, Kalitowski, Judge, and Harten, Judge.

U N P U B L I S H E D†† O P I N I O N

 

HARTEN, Judge

 

††††††††††† Relator challenges the commissionerís representativeís determination that relator is disqualified for benefits because he quit his employment without a good reason caused by his employer and he did not make reasonable efforts to remain employed while he was medically disabled.† Because we agree that relator is disqualified from receiving benefits for these reasons, we affirm.

FACTS

 

In March 1999, relator Richard Domingo began to work for respondent Little Six Bingo, Inc. (LS).† On 8 July 2001, relator was hospitalized because of problems with his right foot.† On 11 July, he received medical notice that he could return to work on 18 July in a light duty position with lifting and standing restrictions until 1 August; on 18 July, he was told that he must have a ďsitting onlyĒ light duty position until the end of August.† Relator worked in this position until 15 August, when he left to have previously arranged surgery on his eye.† He was scheduled to return to work from this absence on 8 September.†

On 17 August, LSís benefits department sent relator a letter telling him that (1) he was entitled to 26 weeks of leave in a 12-month period; (2) for the first 12 weeks of leave, his job would be protected; and (3) his job protection would end on 20 October 2001.† Relator quit his employment in early September.†

In November, relator applied for unemployment benefits.† The Department of Economic Security determined that he was eligible for benefits and, after LS appealed, an unemployment law judge affirmed that determination, finding that a serious illness made it medically necessary that relator quit his job.†

LS appealed to the commissioner; the commissionerís representative reversed the unemployment law judge and determined that relator was ineligible for benefits.† Relator challenges that determination, arguing both that he quit because of a good reason caused by LS and that a serious illness made it medically necessary for him to quit.

D E C I S I O N

 

††††††††††† On appeal, a reviewing court must examine the decision of the commissionerís representative rather than that of the unemployment insurance judge.† Kalberg v. Park & Recreation Bd., 563 N.W.2d 275, 276 (Minn. App. 1997).† Decisions of the commissionerís representative are accorded particular deference.† Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).† However, the ultimate determination of whether an employee is disqualified from receipt of unemployment benefits is a question of law that this court reviews de novo.† Ress v. Abbott N.W. Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).†

1.†††††††† Did relator quit because of a good reason caused by his employer?

††††††††††† Minn. Stat. ß 268.095, subd. 1 (Supp. 2001), provides:

An applicant who quit employment shall be disqualified from all unemployment benefits except when:

(1) the applicant quit the employment because of a good reason caused by the employer.

 

The determination that an employee quit without good reason attributable to the employer is a legal conclusion, but it must be based on findings that have the requisite evidentiary support.† See Zepp v. Arthur Treacher Fish & Chips, Inc., 272 N.W.2d 262, 263 (Minn. 1978) (interpreting predecessor statute, requiring ďgood causeĒ attributable to employer).

†The commissionerís representative found:

On September 6, 2001, [relator] spoke with the benefits specialist for the employer.† [Relator] stated that he was considering quitting his job. * * * [Relator] had not provided the employer with any medical statements showing that [relator] had restrictions or that he was unable to work after September 8, 2001, which was the date that [relator] had been released by his eye doctor to return to work without restrictions.† [Relatorís] previous medical statement, concerning his ankle and foot, had restricted him to light duty work only until August 29, 2001.

 

On September 8, 2001, [relator] informed his shift manager that he was quitting his job because the employer did not have any positions available for him.† The employer did not have any light duty positions available for [relator] at that time.† [Relator] did not request that he be placed on a leave of absence or on disability leave after September 8, 2001.

 

In light of these findings, the commissionerís representative

 

[did] not find that the employer was unfair or unreasonable or violated any duty which it owed to [relator] as an employee.† We are not persuaded that the average, reasonable employee would quit under the circumstances rather than remain employed.† The evidence shows that [relator] clearly made the decision to end his employment at the time the employment ended on September 8, 2001.

 

Relatorís testimony in response to questions from the unemployment insurance judge supports this finding.† He testified that, although he was told to go to LSís human resources department to inquire about a position in another department, he did not go and inquire because he thought the salary of the position he might be offered would be inadequate.† †††††††††††

Relator had been told that he was eligible to remain on job-protected leave, with benefits, until 20 October, yet he chose to quit on 8 September rather than wait to see what jobs might become available.† As the commissionerís representative found, the average reasonable employee would not have quit under those circumstances.† We conclude that relator did not quit because of a good reason caused by his employer.


2.†††††††† Did relatorís serious illness make it medically necessary that he quit?

††††††††††† Minn. Stat. ß 268.095, subd. 1, provides:

An applicant who quit employment shall be disqualified from all unemployment benefits except when:

 

* * * *

 

(7) the applicant quit the employment because the applicantís serious illness * * * made it medically necessary that the applicant quit, provided that the applicant made reasonable efforts to remain in that employment in spite of the serious illness * * *.

 

Reasonable efforts to remain in that employment are those a reasonable individual would make if interested in remaining with the employer and require that the applicant inform the employer of the serious illness * * * and request accommodation.

 

It is undisputed that relator had a serious illness, so the question becomes whether he made reasonable efforts to stay employed despite that serous illness.† The commissionerís representative found that

[relator] had not provided the employer with any medical statements showing that [relator] had restrictions or that he was unable to work after September 8, 2001, which was the date that [relator] had† been released by his eye doctor to return to work without restrictions.† [Relatorís] previous medical statement, concerning his ankle and foot, had restricted him to light duty work only until August 29, 2001.†

 

Relatorís testimony again supports these findings.† He testified that he did not request additional time off for his ankle injury after 8 September, when he was scheduled to return to work after his eye surgery.† Thus relator did not make reasonable efforts to remain employed despite his disability or even to keep his employer informed of the restrictions he thought he had.

††††††††††† Relator relies on Madsen v. Adam Corp., 647 N.W.2d 35, 38 (Minn. App. 2002) (holding that employee who discussed with supervisor an alternative position that would accommodate a medical disability had made reasonable efforts to remain employed).[1]† But Madsen is distinguishable on the facts: the employee there, unlike relator in the instant case, was not presented with the option of remaining employed, on leave, for up to 26 weeks until another position opened.† Here, relator chose to reject that option and quit without making reasonable efforts to remain employed in spite of his illness.

††††††††††† Because we conclude that relator quit without a good reason caused by his employer and did not make reasonable efforts to stay employed despite his medical disability, we affirm the commissionerís representativeís decision that he was not entitled to unemployment benefits.

††††††††††† Affirmed.



[1] We note that Madsen, released on 2 July 2002, was not yet law on 11 June 2002 when the commissionerís representative signed his decision.