Patrick K. Johnson, Relator, vs. Vision World, Inc., Respondent, Commissioner of Economic Security, Respondent. C1-96-2340, Court of Appeals Unpublished, April 8, 1997.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C1-96-2340

Patrick K. Johnson,

Relator,

vs.

Vision World, Inc.,

Respondent,

Commissioner of Economic Security,

Respondent.

Filed April 8, 1997

Affirmed

Davies, Judge

Department of Economic Security

File No. 6987UC96

Patrick K. Johnson, 423 - 172nd Ave. N.E., Ham Lake, MN 55304 (Pro se Relator)

Marko J. Mrkonich, Christine A. Kucera, Oppenheimer, Wolff & Donnelly, 3400 Plaza VII Bldg., 45 S. Seventh St., Minneapolis, MN 55402-1609 (for Respondent Vision World)

Kent E. Todd, Minnesota Department of Economic Security, 390 N. Robert St., St. Paul, MN 55101 (for Respondent Commissioner of Economic Security)

Considered and decided by Davies, Presiding Judge, Norton, Judge, and Kalitowski, Judge.

U N P U B L I S H E D O P I N I O N

DAVIES, Judge

Relator Patrick K. Johnson challenges his disqualification from reemployment insurance benefits, claiming the Commissioner of Economic Security erroneously determined that he quit his job without good cause attributable to his employer. We affirm.

FACTS

For nearly seven years, relator Patrick Johnson worked as an optician for respondent Vision World, Inc. He left in July 1996.

On June 12 that year, Johnson underwent non-emergency surgery, but failed to notify his employer that he would require a medical leave. Vision World was unaware of Johnson's absence until a supervisor tried to reach him at the store he managed, and another employee informed the supervisor of Johnson's condition.

When Johnson failed to report to work on June 17, the return date authorized by his physician, Vision World supervisors tried unsuccessfully to contact him. When they finally reached him on June 24, they told him that, without a doctor's note explaining his absence, they would consider his failure to return to work to be job abandonment.

The next day, Johnson received a certified letter from Vision World offering to continue him in the position he currently held, but incorporating the surgery-related work restrictions suggested by his doctor. Johnson did not respond to the company's employment offer, but left a message that he was now ill with pneumonia. Vision World again warned Johnson that he needed to document the reason he did not return to work on June 17, but Johnson again failed to do so.

Vision World considered Johnson's conduct to be a violation of company policy and unacceptable because the company needed "accountability" from a managerial employee. Vision World offered Johnson a demotion to assistant manager, but Johnson declined the demotion and left Vision World's employment on July 12.

Johnson's application for reemployment insurance benefits was initially denied on the ground that he had abandoned his position. Following an evidentiary hearing, a reemployment insurance judge reversed that decision, concluding that Johnson quit with good cause attributable to Vision World. Vision World appealed and the decision was reviewed by a representative of the Commissioner, who found that Johnson was disqualified from receiving reemployment insurance benefits because he quit without good cause attributable to his employer.

D E C I S I O N

This court reviews the decision of the Commissioner's representative rather than that of the unemployment insurance judge. Weaver v. Minnesota Valley Lab., Inc., 470 N.W.2d 131, 133 (Minn. App. 1991). We will not disturb the Commissioner's factual findings "if there is evidence reasonably tending to sustain them." White v. Metropolitan Med. Ctr., 332 N.W.2d 25, 26 (Minn. 1983). The ultimate issue of disqualification, though, is a question of law subject to de novo review. Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).

An individual who voluntarily quits a job without good cause attributable to the employer is disqualified from receiving reemployment insurance benefits. Minn. Stat. § 268.09, subd. 1(a) (1996). An employee discharged from employment for misconduct is similarly disqualified. Minn. Stat. § 268.09, subd. 1(b) (1996).

[I]n situations in which an employer demotes an employee for misconduct warranting discharge, an employee who leaves employment should be disqualified from receiving benefits.

Goodwin v. BPS Guard Servs., Inc., 524 N.W.2d 28, 29 (Minn. App. 1994).

Absence from work without prior notice to the employer is misconduct. Moeller v. Minnesota Dep't of Transp., 281 N.W.2d 879, 882 (Minn. 1979); cf. Prickett v. Circuit Science, Inc., 518 N.W.2d 602, 605 (Minn. 1994) (employee's absence from work not misconduct because employee maintained contact with employer and reported daily regarding inability to secure child care after change in hours on short notice).

The Commissioner's representative found that Johnson failed to notify Vision World that he was having surgery, failed to return to work when authorized, and failed to respond to the employer's request for documentation regarding his absence. These findings support the Commissioner's representative's conclusion that the offered demotion was the result of Johnson's own misconduct and that he quit without good cause attributable to Vision World. We affirm the Commissioner's representative's determination that Johnson is disqualified from receiving reemployment insurance benefits.[1]

Affirmed.

[ ]¹ Johnson has moved to submit a physician's statement explaining an alleged misunderstanding regarding the date Johnson was authorized to return to work. The physician's statement is irrelevant to our decision. Johnson's refusal to provide such documentation at the repeated request of his employer was one of the underlying bases for the Commissioner's representative's decision that Johnson's employment misconduct resulted in Vision World's offered demotion.