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

DEBRA L ESCH, Employee

MISSOULA MAC INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02004273MD


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.

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 worked about eight years as a counter person for the employer, a fast-food restaurant. Her last day of work was May 23, 2002 (week 21), when the employer terminated her employment.

The issue to be decided is whether the employee was able to work and available for work in the employee's labor market as of week 22 of 2002.

The employee does not have an automobile operator's license nor does she own or have regular access to a motor vehicle. She does not have a friend or relative who can provide her with transportation on a regular basis to a work site located beyond a walking distance of her Dodgeville residence. If offered work outside of Dodgeville, she would have to determine whether she could get a ride to the job with some other Dodgeville resident who traveled that direction during the time period when she would be scheduled to work.

The employee has work experience as a grocery store carryout person and a fast- food restaurant worker. She is a high school graduate. She has an undefined learning impairment.

The employee's labor market is defined as being a radius of approximately 15 to 20 miles around her residence. About 4,800 full-time jobs, which amounted to 43 percent of all the jobs in her labor market, would be suitable for a person with the employee's education and work experience. Within that labor market area her transportation restriction limits her to about 30 percent of those 4,800 full-time jobs that she would be otherwise able to perform.

The Wisconsin statutes 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 to work and available for work if he, without good cause, restricts himself to less than 50 percent of the full-time opportunities for suitable work in his labor market, or if his physical condition or uncontrollable circumstances limit him to less than 15 percent of the opportunities for suitable work in his labor market.

Wisconsin Administrative Code § DWD 128.01 (2)(b), applies to totally unemployed claimants and provides that a claimant is not considered able to work and available for work if the claimant's physical condition limits the claimant to less than 15 percent of the opportunities for suitable work in the claimant's labor market. Wis. Admin. Code § DWD 128.01 (5), provides that the department may require a claimant who is partially unemployed to comply with the requirements of Wis. Admin. Code ch. DWD 128 if there is some definite indication that the claimant is not genuinely interested in working full time.

The employee argued that her failure to possess a motor vehicle operator's license was attributable to a cognitive impairment and as a result, her lack of transportation should be classified as an uncontrollable circumstance subject to a 15 percent threshold under the Unemployment Insurance Law. The commission agrees.

The employee specifically testified that she applied for and received DVR services for assistance with Driver's License training. She had to suspend her training because she had an accident and was unable to continue driving. The employee presented evidence of her case summary from DVR indicating that the employee had been eligible for DVR services as a result of her learning disability. At the time of the hearing the employee was attempting to obtain the services of DVR for assistance in getting a driver's license. The ALJ ruled that Exhibit 4, a letter from the employee's DVR counselor, was not admissible because it was hearsay. The commission overrules this objection because Wis. Admin. Code § DWD 140.16(1) specifically provides that hearsay is admissible if it has reasonable probative value but no issue may be decided solely on hearsay evidence unless that evidence is admissible under the rules of evidence. In this case, the letter merely corroborates the employee's testimony that she was receiving DVR assistance to obtain her driver's license.

The commission concludes that the employee in this case has a cognitive impairment that adversely affected her ability to get a driver's license. The employee procured the assistance of DVR in order to get her license but was forced to stop driving as a result of an accident. The employee's learning disability and the inability to continue with her DVR training gave the employee good cause for restricting her availability for work. As such, the employee must demonstrate that she is available for at least 15 percent of the suitable work in her labor market. In this case, labor market evidence demonstrated that the employee was available for about 30 percent of the suitable work in her 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 22 of 2002, 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 22 of 2002, if she is otherwise qualified. This matter is remanded to the department for a determination as to whether the employee worked and earned wages as of about July 23, 2002.

Dated and mailed March 31, 2003
eschde . urr : 145 : 1  AA 215  AA 240

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ James T. Flynn, Commissioner


MEMORANDUM OPINION

The commission did not discuss witness credibility and demeanor with the ALJ prior to reversing his decision. The commission reverses the ALJ's decision because it reached a different legal conclusion when applying the law to the facts found by the ALJ.

NOTE: The commission remands this matter for a determination as to whether the employee worked and earned wages. The employee testified at the time of the hearing that she was working for a motel. However, department records indicate that she did not report earning any wages during weeks she was claiming benefits.

cc: Chuck Kreimendahl


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


uploaded 2003/04/11