Mark Rodgers, Cann, Haskell, D'Albani, Schueppert, Hazelton & Rodgers, P.A., 205 Seventh Street, Bemidji, MN 56601 (for relator)

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

Considered and decided by Crippen, Presiding Judge, Parker, Judge, and Short, Judge.

In light of new medical evidence, relator Douglas Hanson seeks reversal or remand of the commissioner's decision denying his claim for reemployment insurance benefits. We affirm.

An orthopedic surgeon first diagnosed relator as having a contusion and sprain of his right knee. In February, when relator indicated that he had no pain with walking and that he did not think he needed additional physical therapy, the surgeon released relator to return to work. The surgeon saw relator periodically during the next six months. In March, he noted that relator had significant quadriceps atrophy. At that time, the surgeon attributed the atrophy to relator's failure to rehabilitate his knee properly through physical therapy. In June 1996, relator had an MRI of his knee that suggested a small lateral meniscus tear. His surgeon determined that relator's persistent medial pain did not coincide with the MRI findings of a lateral tear. On August 27, 1996, three weeks before relator quit his job, his surgeon noted that relator "still has a helper with him but he feels much improved" and that his knee was "nontender."

On September 19, 1996, relator called his supervisor and told him he was quitting. Relator applied for reemployment insurance benefits, alleging his resignation was due to a medical disability. Affirming a reemployment judge's earlier findings, the commissioner's representative determined that relator was disqualified from receiving reemployment insurance benefits because he had "failed to establish that his own serious illness caused the separation and that he made reasonable efforts to retain his employment." The representative concluded that the evidence did not show that relator was medically unable to perform his work. The representative noted that relator's doctor released him to return to work in February 1996 and that relator's ability to work was shown by his request to return to work three days after he quit.

In February and April 1997, after the commissioner's representative decided the case, two new physicians examined relator. The February examination noted marked atrophy of relator's right quadriceps, along with diffuse tenderness that was more pronounced along the lateral joint line. His condition was consistent with the MRI findings of a lateral meniscus tear and in contrast with the medial joint pain that was observed in August. The February findings were corroborated in the April examination, and relator's surgeon confirmed the findings in a June deposition.

It is undisputed that relator terminated his employment due to his knee injury. The testimony of relator's supervisor indicates that relator also quit because he believed he would fail an upcoming drug and alcohol test. The commissioner's representative found that relator left his job "in part" because of the test but did not determine that this fact defeated his "serious illness" claim.

The commissioner's representative found relator did not quit because of a serious illness. A finding of the reason for an employee's separation is a factual determination. Embaby v. Department of Job & Training, 397 N.W.2d 609, 611 (Minn. App. 1986). When reviewing the representative's findings, we are limited to determining if there is evidence reasonably tending to sustain those findings. White v. Metropolitan Med. Ctr., 332 N.W.2d 25, 26 (Minn. 1983).

In this claim for reemployment benefits, relator pleads that new medical evidence shows he is unable to work.[1] This evidence includes two separate physician's reports in workers' compensation proceedings. Relator's orthopedic surgeon later corroborated both reports. None of these reports were available before the commissioner's representative decided the case. We have in the past found occasion to remand on a request that consideration be given to evidence discovered after the commissioner's ruling.[2]

We have examined the medical evidence and none of it is germane to the question determined by the commissioner, that is, whether relator can demonstrate that he was unable to work on the day he quit, September 12, 1996. The subsequent medical reports only confirm that relator was unable to perform work after his medical symptoms developed through the spring of 1997. Under these circumstances, there is no cause to remand the case for further proceedings.

Affirmed.

SHORT, Judge (concurring specially).

I concur insofar as the majority concludes Hansen quit his job without good cause attributable to Zenith. Considering the evidence in the light most favorable to the decision, the evidence reasonably tends to sustain the Commissioner's findings that Hanson: (1) did not separate from employment due to serious illness; (2) did not make reasonable efforts to retain employment; and (3) quit, in part, because he did not want to take the drug screening test. See Tuft v. Knitcraft, 526 N.W.2d 50, 51 (Minn. 1995) (holding court defers to representative's findings even when findings involve witness credibility). I write separately to express concern about our reviewing "newly discovered" evidence that is not part of the record and could have been produced timely by Hanson with due diligence.

[1] Relator also contends that relief should be granted because he informed the reemployment judge that additional medical evidence would be received. But this was in reference to a medical report due in mid-December that was not produced.

[2] The statutes and rules in respect to reemployment claims do not address the question of newly discovered evidence after the commissioner has acted. A prior remand by this court in similar circumstances parallels the admission of additional evidence in an administrative proceeding under Minn. Stat. § 14.67 (1996).