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

JACK E SVOKE, Employee 

CENTRAL CONCRETE CUTTING INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00005580WU


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

On March 21, 2001, the commission issued an order remanding this matter for additional testimony, specifically regarding the employee's physical restrictions, wage restriction and the testimony of a labor market expert with regard to his restrictions.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee initiated a claim for unemployment insurance benefits on September 26, 2000 (week 40 of 2000).

The issue is whether the employee was able to work and available for work in the employee's labor market as of week 40 of 2000.

On May 31, 2000, the employee was injured at work. Due to his back injury, he was completely off work and collecting worker's compensation benefits until such benefits ceased on or about September 26, 2000. He then initiated a claim for unemployment insurance benefits. At that time, he claimed that he was able to work and available for work.

The employee testified that he had experience as a car salesman, a snowmobile tour guide and condominium cleaner. He performed maintenance work as well. He also worked in the construction industry. He operated a loader and other machinery. He packed truck for a moving industry, and picked cranberries. The employee has a high school diplomacy and some college. He has also taken CPR. He has worked pipeline. He also worked as a sawyer and an auto mechanic.

The employee also testified that he had a wage restriction of $10 per hour if he were offered a job that was in his field but not through the union, but otherwise had no wage restriction.

His UCB-474 Medical Report indicates that the employee had degenerative disc and joint disease but he is able to perform heavy labor, subject to certain restrictions.

The department's labor market analyst testified that he has 29 years of experience in his field. He testified that based on the information concerning the employee's physical limitations and work experience the employee is a "jack of all trades." The labor market analyst pointed out that he has seldom seen a person with such an extensive background. He determined based on the employee's universe of suitable work and the restrictions given on his physician's statement and medical report the employee would be available for at least 75 percent of all suitable work in his labor market. The employee's labor market is Marathon County. Because he is a union construction worker, his labor market might be extended to any area where his local would offer him the next job.

The statues provide that a claimant is not eligible for benefits unless able to work and available for work. The Wisconsin Administrative Code implements the statutes and provides that a claimant will not be considered able and available if he or she, without good cause, restricts him or herself to less than 50 percent of the full-time opportunities for suitable work in the labor market, if his or her physical condition or uncontrollable circumstances limit him or her to less than 15 percent of the opportunities for suitable work in the labor market, or if he or she, without good cause, fails to participate in an eligibility review interview.

Assuming that the employee had a $10 per hour wage restriction, the labor market analyst determined that the employee would still be available for at least 60 percent of suitable work in his labor market.

Based on the evidence in the record, the commission must conclude that the employee is able to work and available for work.

The commission therefore finds that as of week 40 of 2000, the employee was able to work and available for work within the meaning of Wis. Stat. § 108.04(2)(a) and Wis. Admin. Code § DWD 128.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits as of week 40 of 2000, if he is otherwise qualified.

Dated and mailed June 29, 2001
svokeja . urr : 145 : 1  AA 105

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The commission did not discuss witness credibility and demeanor with the ALJ but reverses based on the evidence adduced at the remand hearing, in particular the credible expert testimony provided by the labor market analyst. That evidence was not available to the ALJ when she made her decision.

cc: Attorney Robert Gray


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uploaded 2001/07/02