Wis.LIRC UC Decision: Kraemer, Edward - October 22, 2002 - AA 240 - Health - physical condition - VL 1007 Quit vs. discharge / layoff - employee did not quit, but was rather discharged by employer when it ended the employment relationship because it concluded there was no further work available for him within restrictions he was subject to due to injury -- employer's refusal of employer's subsequent of offer of work as a receptionist was not a "quit", because the employment relationship had already ended at that time -- employee eligible because available for at least 15% of suitable work notwithstanding his restrictions

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

EDWARD J KRAEMER, Employee

MATTHEWS INTERNATIONAL CORP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01607620WK

On August 24, 2001, the Department of Workforce Development issued an initial determination which held that the employee quit employment but not for a reason allowing for immediate eligibility for unemployment insurance. The employee filed a timely request for hearing on the adverse determination, and hearing was held on October 22 and December 3, 2001 in Waukesha, Wisconsin before a department administrative law judge. On December 11, 2001, the administrative law judge issued an appeal tribunal decision modifying and reversing the initial determination. The employee filed a timely petition for commission review and, by February 26, 2002 order, the commission remanded the matter for further hearing. That hearing was held on June 30, 2002. The matter is again before the commission, and now is ready for disposition.

Based upon the applicable law and the records and other evidence in the case, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW
The employee worked approximately six years, most recently as a fabricator, for the employer, a manufacturer. His last day of work was in mid-April, 2001, and the employment ended on May 7, 2001 (week 19). The initial issue is whether the employee quit, or was discharged from, his employment.

The employee injured his shoulder in January of 2000. He subsequently underwent surgery in October of 2000 and, on April 16, 2001, was released to return to work. The employee's permanent medical restrictions are as follows. He is not to reach above shoulder level. In addition, he is to avoid sustained reaching and holding. He may occasionally lift 45 pounds and frequently lift 20 pounds, but only below shoulder level. To the extent that the employee can do "sustained reaching," he is not to lift more than 25 pounds "away" from his body.

The employer initially had part-time work for the employee within the above restrictions, which the employee performed until he had completed the work on or about May 1, 2001. At that time the employee met with the employer, who told him there was no further work available for him within his restrictions. The employer then wished the employee luck in finding work. On May 9, 2001, the employee initiated a claim for unemployment insurance. Shortly thereafter, the employee received a letter from the employer referring to a receptionist position. The employee contacted the employer to inform it that he did not want that position.

The employer contended that the employee quit his employment when he refused the work offered him as a receptionist. This contention cannot be sustained. The record in this matter shows that the employment relationship ended on or about May 1, 2001, when there was no further work available for the employee within his physician's restrictions. There was no firsthand evidence or testimony to establish that he was then offered the position as the receptionist. Instead, the record shows that the employer ended the employment relationship. For purposes of the unemployment insurance law, this constitutes a discharge.

The next issue to be decided is whether the employee was able to work and available for work in the labor market at the time the claim for unemployment benefits was initiated. The commission concludes that he was, and so reverses in part the appeal tribunal decision.

By operation of Wis. Admin. Code § DWD 128.01(2)(b), a claimant must be able, notwithstanding any medical restrictions he or she has, to perform at least 15 percent of the suitable work in the claimant's labor market area. The employee is able to perform more than 20 percent of the suitable work in his labor market area, notwithstanding his medical restrictions. The employee thus meets the minimum 15 percent ability to work requirement of the law.

DECISION

The appeal tribunal decision is affirmed in part and reversed in part. Accordingly, the employee is eligible for unemployment insurance beginning in week 18 of 2001, if he is otherwise qualified.

Dated and mailed October 22, 2002
kraemed . urr : 105 : 8 AA 240 VL 1007

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

Laurie R. McCallum, Commissioner

NOTE: The commission's reversal is not based upon a differing credibility assessment from that made by the administrative law judge. Rather, the commission's reversal is based upon labor market evidence from the remand hearing, evidence obviously not before the administrative law judge when he issued his decision.
The employee's medical restrictions were not precisely stated by the employee's physician. For this reason, the labor market analyst's testimony necessarily was also somewhat imprecise. Only if the employee were prohibited from any sustained reaching, though, would his ability to work fall below the minimum 15 percent threshold of eligibility. The employee testified that his physician told him only that he should not do a lot of sustained reaching. The employee also testified that, in his current work as a bus driver for the City of Waukesha, he performs reaching (around the steering wheel) every day and with no difficulty. For these reasons, the commission has concluded that the employee's medical restrictions do not render him ineligible for unemployment insurance.

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uploaded 2002/11/01