BEFORE THE
STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION


TERESA M VALLEY, Employee

STOUGHTON TRAILERS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 92003446JV


On June 13, 1992, the Department issued an Initial Determination which held that the employe was not "available for work," within the meaning of section ILHR 128.01 (2)(a) of the Wisconsin Administrative Code. The employe timely requested a hearing on the adverse determination, and hearing was held on July 21, 1992 in Janesville, Wisconsin, before Administrative Law Judge Donald J. Doody. 0n July 31, 1992, Administrative Law Judge Doody issued an Appeal Tribunal Decision affirming the Initial Determination. The employe timely petitioned for Commission review of the adverse Appeal Tribunal Decision, and the matter now is ready for disposition.

Based on the applicable law, records, and evidence in this case, the Commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The issue in this case is the percentage of work an employe must be available for who has both controllable and uncontrollable restrictions upon his or her work. The Appeal Tribunal held that an employe must be available for 50 percent of the suitable work in his or her labor market area, taking into account both the employe's controllable and uncontrollable restrictions upon the employe's availability for or ability to work. The Commission does not believe this interpretation is called for by the administrative code provisions at issue, and so reverses the Appeal Tribunal Decision.

The employe worked approximately 3 1/2 years as a painter for the employer, a trailer manufacturer. She suffered a work-related back injury on or about October 29, 1991, subsequent to which she was off work for a time or assigned to light duty. The employer required her to take unpaid medical leave as of March 16, 1992, following a determination that the employe's physical restrictions were not work-related. The doctor who performed the examination diagnosed organic lumbar scoliosis necessitating certain restrictions upon the employe's physical activity. Specifically, the employe is supposed to avoid stooping, bending, pulling, and pushing, and is restricted to lifting at most 20 pounds no more than waist high. The employer suspended the employe's employment pursuant to its policy that "light work" would be made available only to employes whose medical restrictions were due to work-related injury. The employe, in addition to her physical restrictions, also initially had a wage restriction of $8 per hour, which she had changed to $7 per hour as of the date of hearing (July 21, 1992 (week 30)).

A Department labor market analyst testified as to the percentages of work the employe was available for, given her physical and wage restrictions. The employe's physical restrictions render her able to perform approximately 1424 percent of all suitable jobs in her labor market. Approximately 147 percent of those jobs pay $8 per hour or more; 60 percent pay $7 per hour or more. The Commission takes these figures to be applicable to the entire group of suitable work, and not only to the work the employe is limited to due to her physical restrictions. As indicated above, the employe originally had a wage restriction of $8 per hour; she credibly testified at hearing that she had lowered her restriction to $7 per hour, upon realizing how difficult it was to find work paying $8 per hour.

The provision at issue is section ILHR 128.01 (2) of the Wisconsin Administrative Code. It provides essentially that a claimant is not considered available for work if the claimant, without good cause, restricts his or her availability for work to less than 50 percent of the full-time opportunities for suitable work in the claimant's labor market area. The section then provides that a claimant is not considered able to work if the claimant's physical condition or personal circumstances over which the claimant has no control limit the claimant to less than 15 percent of the opportunities for suitable work in the claimant's labor market area. Section 108.04 (1)(b)1 of the Statutes states essentially that an employe whose work was suspended or terminated because of the employe's inability to work, still is eligible for benefits if he or she meets the above-mentioned criteria.

The Administrative Law Judge held that where, as here, an employe has both a controllable and uncontrollable restriction, the employe still must be available for at least 50 percent of the suitable work in the employe's labor market area. The Commission believes the controllable and uncontrollable restrictions should be analyzed separately, for the following reasons. First, the Department's interpretation reads out of the code the provision that a claimant with an uncontrollable physical condition need be able to perform only 15 percent of the opportunities for suitable work. For example, under the Department's interpretation a claimant with a physical restriction limiting him or her to 30 or 35 percent of the suitable work would be ineligible for benefits if that claimant also had even a modest wage restriction (such as not wanting to work for the lowest pay in the claimant's labor market area). The controllable restriction might still render the employe available for even 99 percent of the suitable work in his or her labor market area. Coupled with the uncontrollable restriction, though, the claimant would be available for less than 50 percent of the suitable work in the labor market area. In the Commission's opinion, such a result is unreasonable and therefore to be avoided if any other interpretation of the provisions is reasonable. Second, the 50 percent and 15 percent requirements of ILHR 128.01 (2) are listed disjunctively. There is no indication of any kind of tie-in of controllable and uncontrollable restrictions. The provisions in question are listed independently of each other by their terms; they address different categories of restrictions, and there is no suggestion that, where a claimant has both a controllable and uncontrollable restriction, the uncontrollable restriction should play any part in the determination of availability notwithstanding controllable restrictions.

The employe is able to perform approximately '44 percent of the suitable work in her labor market area, notwithstanding her uncontrollable restrictions. She thus is able to work, within the meaning of section ILHR 128.01 (2)(b) of the Wisconsin Administrative Code, and the Commission so finds. As of the date of hearing, in week 30 of 1992, the employe was available for approximately 60 percent of the suitable work in her labor market area, given her wage restriction of $7 per hour (the employe remains ineligible for benefits until that time, since her wage restriction of $8 per hour alone rendered her available for only 47 percent of the suitable work in her labor market area, less than the 50 percent minimum of section ILHR 128.01 (2)(a) of the code). The employe therefore is available for work, within the meaning of section ILHR 128.01 (2)(a) of the Wisconsin Administrative Code, and the Commission so finds. The Commission therefore finds that, as of week 30 of 1992, the employe was able to work and available for work, within the meaning of sections 108.04 (1)(b)1 and 108.04 (2)(a)1 of the Statutes.

DECISION

The Appeal Tribunal Decision is reversed. Accordingly, the employe is eligible for unemployment benefits beginning in week 30 of 1992, if she is otherwise qualified.

Dated and mailed February 19, 1993
105 : CD0915  AA 200  AA 240  AA 285

/s/ Pamela I Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

NOTE: The Commission did not confer with the Administrative Law Judge prior to determining to reverse the Appeal Tribunal Decision. The Commission's decision to reverse the Appeal Tribunal Decision is as a matter of law, and not due to differing assessment of witness credibility from that of the Administrative Law Judge who presided over the hearing.


[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]


uploaded 2001/03/05