ALFRED M TALAMANTES, Employee

MADISON FREIGHT SYSTEMS INC, Employer

On May 26, 2001, the Department of Workforce Development issued an initial determination which held that the employee's employment was terminated because he was unable to perform suitable work otherwise available with the employer. The determination also held that the employee was able to perform at least 15 percent of the suitable jobs in his labor market, and that he therefore was eligible for unemployment insurance. The employer filed a timely request for hearing on the adverse determination, and hearing was held on June 26, 2001, in Madison, Wisconsin before a department administrative law judge. On June 27, 2001, the administrative law judge issued an appeal tribunal decision reversing the initial determination of eligibility. The employee filed a timely petition for commission review of the adverse appeal tribunal decision. Following remand hearings on October 15, 2001 and January 8, 2002, the matter is again before the commission and is ready for disposition. Based upon the applicable law and the records and other evidence in the case, the commission issues the following:

The employee worked approximately six years as a truck driver for the employer, a trucking concern. His last day of work was April 12, 2001, and the issue is whether the employee's subsequent separation from employment was a quit under Wis. Stat. § 108.04 (7)(a) or a suspension because of physical inability to perform work available with the employer under Wis. Stat. § 108.04 (1)(b)(1). The commission concludes that it was the latter, and so reverses in part the appeal tribunal decision. The commission also concludes that the employee does not meet the ability to work requirement of Wis. Stat. § 108.04 (1)(b)(1), and so affirms the appeal tribunal's ultimate conclusion of ineligibility for benefits.

During the summer of 2000, the employee injured his knee while at work. The employer accommodated the employee's temporary restrictions. On or about April 10, 2001 the employee, via his physician, provided the employer with the employee's permanent restrictions. Those restrictions state that the employee has a permanent partial disability rating of 12 percent and that he cannot perform any climbing. Although the permanent restrictions state nothing about lifting, in fact the employee also had a 10 to 20 pound lifting restriction.

On April 12, 2001, the employee met with the employer, who offered the employee a full-time job as a messenger driver. Although the position did not involve any climbing, it did involve occasional lifting of up to 50 pounds. The job paid $9 per hour and, while it was with another division of the employer, that division operated out of the same terminal the employee had previously worked from. The employer advised the employee that if he did not want the job, he could go on family and medical leave for up to 12 weeks and see if another job within his restrictions opened up in the interim. The employee chose to go on family and medical leave.

The employee declined the job for three reasons. First, the offer was with a different division of the employer; second, it paid only $9 per hour (compared to his previous wage of $14 per hour); and, third, he did not believe he could perform the lifting connected with the work. The first two reasons were not valid. That the job was with a different division of the employer is not reason at all not to take it, if it is the only job available. The decrease in wage was not a valid reason for refusing the job, either. There is no basis upon which to conclude that that was not the standard wage for the work in question, and the employee's medical condition prevented him from performing the work he previously had performed. Inability to perform one of the requirements of a job, however, is a valid reason for refusing it.

On May 16, 2001 (week 20), the employee telephoned the employer and asked to be removed from medical leave. The employee indicated that he could not afford to remain on unpaid leave. The employer told the employee that this removal would end the employee's employment; the employee still asked to be removed. The employee's employment ended at this point, and the first issue is whether this separation is disqualifying for unemployment insurance purposes.

Wisconsin statute § 108.04 (1)(b)(1) states that an employee is ineligible for benefits while unable to work or unavailable for work, if his or her employment with an employer was suspended by the employee or by the employer or was terminated by the employer because the employee was unable to do, or unavailable for, suitable work otherwise available with the employer. In other words, an employee may suspend employment if the employee is unable to perform the work, and still be eligible for unemployment insurance if the employee meets the ability to work and availability for work requirement of Wis. Stat. § 108.04 (2)(a) and Wis. Admin. Code § DWD 128.01 (2). The suspension provision is designed for the circumstances present here. The employee had a work injury, following which he had surgery and rehabilitation and permanent restrictions. The employer subsequently had no work available for the employee within those restrictions. The commission therefore concludes that, in week 20 of 2001, the employee suspended his employment with the employer because he was unable to do suitable work otherwise available with the employer, within the meaning of Wis. Stat. § 108.04 (1)(b)(1).

As indicated above, a requirement for eligibility under this provision is that a claimant meet the ability to work and availability for work requirements of Wis. Admin. Code § DWD 128.01 (2). That provision states, in relevant part, that a claimant is not considered to be able to work or available for work in any given week if:

(a) The claimant, without good cause, restricts his or her availability for work to less than 50% of the full-time opportunities for suitable work, including all such jobs whether vacant or filled, in the claimant's labor market area;

(b) The claimant's physical or psychological condition or personal circumstances over which the claimant has no control limit the claimant to less than 15% of the opportunities for suitable work, including all such jobs whether vacant or filled, in the claimant's labor market area.

The employee is able to work at the light to medium work level. According to an August 6, 2001 functional evaluation, the employee is in the light work level for waist-to-floor lift, unilateral carry, and bilateral carry. He is in the medium work level for waist-to-floor lift and waist-to-eye lift. Based upon the entirety of the employee's restrictions listed in the evaluation, the employee is able to perform 31 percent of the suitable work in his labor market. The employee thus meets the 15 percent requirements of Wis. Admin. Code § DWD 128.01 (2)(b).

The employee also has a wage restriction, however, which disqualifies him from unemployment insurance eligibility. The employee has indicated that he would only accept work paying at least $12 per hour. This restriction limits the employee to approximately eight percent of the suitable work in his labor market. A wage restriction is a controllable restriction; as such, a claimant's wage restriction must not limit the claimant to availability for less than 50 percent of the suitable work in the claimant's labor market. The employee's availability, based upon his wage restriction, is substantially less than the requisite 50 percent maximum. The employee therefore ultimately is ineligible for unemployment insurance based upon his wage restriction.

The commission therefore finds, as of week 20 of 2001, the employee was not available for work within the meaning of Wis. Stat. § 108.04 (2)(a) and Wis. Admin. Code § DWD 128.01 (2)(a). The commission also finds that the employee was paid benefits in the amount of $286 per week for weeks 20 and 22 - 25 of 2001, totaling $1430, for which he was ineligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03 (1). Pursuant to Wis. Stat. § 108.22 (8)(a), he must repay such sum to the Unemployment Reserve Fund. The commission finds, finally, that waiver of benefit recovery is not required under Wis. Stat. § 108.22 (8)(c). Although the overpayment did not result from employee fault as provided in Wis. Stat. § 108.04 (13)(f), yet the overpayment was not the result of departmental error. See Wis. Stat. § 108.22 (8)(c)(2).

The record indicates one remaining issue in this case: the employee's potential eligibility for benefits based upon enrollment in approved training pursuant to Wis. Stat. § 108.04 (16). The record indicates that the employee is enrolled in a machine tool techniques program at a state technical college. The commission is remanding the case to the department for investigation of the employee's potential eligibility for unemployment insurance, notwithstanding his unavailability for work, under the approved training statute, Wis. Stat. § 108.04 (16).

The appeal tribunal decision is reversed in part and affirmed in part. Accordingly, the employee is ineligible for unemployment insurance until he again is available for work, within the meaning of Wis. Stat. § 108.04 (2)(a) and Wis. Admin. Code § DWD 128.01 (2)(a). This matter is remanded to the Department of Workforce Development for investigation of the employee's eligibility for unemployment insurance under Wis. Stat. § 108.04 (16). The employee must repay $1430 to the Unemployment Reserve Fund.

Dated and mailed February 13, 2002
talamal . urr : 105 : 3  AA 105  AA 285  VL 1023.10

David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision in this matter. The basis for the commission's resolution of the case is medical evidence adduced only at remand hearings held after the administrative law judge issued her decision.

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uploaded 2002/02/14