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


DAVID L SHABERT, Employee

CHALLENGE CENTER INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00200633EC


The Department of Workforce Development (department) issued an initial determination on March 31, 2000 finding the employee eligible for benefits. The employer timely requested a hearing before an administrative law judge. A hearing was held on May 2, 2000. The ALJ, who conducted the hearing, issued an appeal tribunal decision on May 5, 2000 affirming the initial determination, finding that the employee was able and available for at least 15% of suitable work on the general labor market. The employer timely petitioned the Labor and Industry Review Commission (commission).

On July 24, 2000, the commission, on its own motion, ordered that testimony be taken before an ALJ, acting on behalf of the commission, with respect to a newly submitted Certified Expert Report on Labor Market Conditions (COED report) based on the employee's uncontrollable restrictions at the time of the hearing. At the remand hearing, a new COED report was submitted, subject to cross- examination by the parties. The commission subsequently considered the petition, the parties' positions, and reviewed the evidence submitted at both hearings. Based on the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked approximately two years and eight months as a residential counselor for the employer, a nonprofit business that provides services to developmentally disabled individuals. The employee's last day of work for purposes of this appeal was March 1, 2000 (week 10), where the issue is whether the employee is able and available for suitable work on the general labor market.

The employee has a congenital absence of his right hand, wrist and part of his forearm. In October of 1999, the employee suffered from an injury to his left shoulder when a patient fell on him. The employee dislocated his shoulder. As a result of his injury, the employee's doctor restricted him to sedentary work. The employer provided work within that restriction until March 1, 2000 (week 10), when the employer no longer had work available for the employee within his restrictions.

Due to his medical condition, the employee at the time of the hearing was restricted to sedentary work. In a certified medical report, the employee's doctor restricted the employee to the following: avoiding climbing, crawling, and extending his hand and arms. The employee has had work experience as a cook, rehabilitation aide, administrative secretary, clerical worker, receptionist, and telemarketer, in addition to his work as a residential counselor. The employee has been certified as a nursing assistant as well as a medical laboratory technician. The employee took courses at a vocational school in business and accounting and also attended two years of college with an emphasis in biology and business.

The Wisconsin statutes provide that a claimant is not eligible for benefits unless he is able to work and available for work. In this case, given the employee's uncontrollable restrictions, the specific issue, is whether the employee is able and available for at least 15% of the suitable work in his labor market.

The COED report relied upon by the ALJ, indicated that the employee was able to perform 62.5% of all suitable work in his general labor market. That COED report however incorrectly reflected the employee's inability to reach. Because of this inaccuracy, the commission remanded for a newly created COED report based upon the employee's actual uncontrollable restriction (no reaching). The newly submitted COED report, considered the employee's inability to reach, and indicated the employee was able and available for less than 15% of the suitable work in his labor market. Based upon this evidence, the employee cannot be considered to have been able to work and available for work on the general labor market beginning in week 10 of 2000.

Therefore, the commission finds that as of week 10 of 2000, the employee is unable to work and unavailable for suitable work, within the meaning of Wis. Stat. § 108.04(2) and Wis. Admin. Code Ch. DWD 128.

The commission further finds that the employee was paid benefits amounting to a total of $2,253.00 for which he is not eligible and to which he is not entitled, within the meaning Wis. Stat. § 108.03 (1).

The final issue to be decided is whether waiver of benefit recovery is required for the weeks the employee received benefits. Wis. Stat. § 108.22(8)(c) provides that the department shall waive recovery of benefits that were erroneously paid if the overpayment was the result of departmental error, and the overpayment did not result from the fault of the claimant.

Wis. Stat. § 108.02(10e) provides:

"DEPARTMENTAL ERROR. "Departmental error" means an error made by the department in computing or paying benefits which results from:

(a) A mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, whether by commission or omission; or

(b) Misinformation provided to a claimant by the department, on which the claimant relied."

The commission is satisfied that a mistake of evidentiary fact occurred when it was determined that the employee was able and available for at least 15% of the suitable work in his labor market despite his actual medical restrictions. The initial COED report which the department's determinations were based upon did not accurately reflect the employee's actual restrictions. The commission is satisfied that this error, although unintentional, nonetheless constitutes a mistake of evidentiary fact within the meaning of Wis. Stat. § 108.02(10e) and consequently justifies waiver of the erroneously paid benefits. Furthermore, the commission is satisfied that the overpayment did not result from the fault of the employee.

The commission therefore finds that the department is required to waive recovery of $2,253.00 in unemployment benefits which were erroneously paid to the employee within the meaning of Wis. Stat. § 108.22(8)(c).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 10 of 2000 and until he is able to work and available for suitable work within the meaning of the law. The employee is not required to repay the sum of $2,253.00 to the Unemployment Reserve Fund.

Dated and mailed October 30, 2000
shabeda.urr : 135 : 1 AA 240   BR 335.02

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did not consult with the ALJ prior to reversing the ATD. The commission accepts the ALJ's factual findings but reaches a different conclusion when applying the law to those facts. In particular, the commission reversal is based on the newly submitted COED report which reflects the employee's actual physical restrictions at the time of the original hearing.


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