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

JOHN T SKENANDORE, Employee

BECKS QUALITY CABINETS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02404319GB


On November 9, 2002, the Department of Workforce Development issued an initial determination which held that the employee met the 15 percent ability to work requirement of Wis. Admin. Code § DWD 128.01(2)(b). The employer filed a timely request for hearing on the determination, and hearing was held on February 24, 2003 in Appleton, Wisconsin before a department administrative law judge. On February 26, 2003, the administrative law judge issued an appeal tribunal decision reversing the initial determination. The employee filed a timely petition for commission review of the adverse appeal tribunal decision and, by September 2, 2003 order, the commission remanded the matter for further hearing. That hearing was held on November 10, 2003; 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 ten months as a cabinet maker/laborer for the employer, a cabinet manufacturer. He last performed work for the employer on July 12, 2002; he subsequently initiated a claim for unemployment insurance and the issue in the present case is whether, as of week 42 of 2002, the employee met the ability to work requirement of Wis. Admin. Code § DWD 128.01(2)(b). Based upon evidence adduced at the remand hearing he does, so the commission reverses the appeal tribunal decision.

The employee's work background includes cabinet making, general construction work, machining, mail delivery, and residential construction zoning inspection work. The employee's medical restrictions, as of week 42 of 2002, follow. He is restricted to light work (or to whatever medium work he can tolerate). He can occasionally do stooping, climbing, crouching, crawling, and kneeling activities (or such activities frequently, as tolerated). He has no restrictions on balancing, reaching, or fingering activities, or on the hours per week he may work.

Wisconsin Stat. § 108.04(2)(a) requires that an unemployment insurance claimant, in order to be eligible for benefits, be able to perform at least some of the work suitable to the claimant in the claimant's labor market. Wisconsin Admin. Code § DWD 128.01(2)(b) quantifies this requirement: a claimant must be able, notwithstanding his or her medical restrictions, to perform at least 15 percent of the suitable work in the claimant's labor market. Based upon the evidence from the remand hearing, the employee meets this requirement. His medical restrictions prevent him from performing only 45 percent of the suitable jobs in his labor market; he therefore easily meets the 15 percent ability to work requirement.

The commission therefore finds that, beginning in week 42 of 2002, the employee was able to work and available for suitable work, within the meaning of Wis. Stat. § 108.04(2)(a) and Wis. Admin. Code ch. DWD 128.

DECISION

The appeal tribunal decision is reversed. Accordingly, the employee is eligible for unemployment insurance beginning in week 42 of 2002, if he is otherwise qualified. There is no overpayment, as a result of this decision.

Dated and mailed December 16, 2003
skenajo . urr : 105 : 1   AA 105  PC 734  PC 735 

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner


NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision in this case. 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 evidence from the remand hearing, evidence obviously not before the administrative law judge when he issued his decision. Both the administrative law judge and the employer have raised the issue of the employee's failure to have timely submitted medical reports in this case. The record indicates, though, that the employee's delay in submitting the primary medical report in the case was due in part to the employee's physician having been on vacation when the report originally was due. The commission does not believe it is appropriate to penalize the employee by simply disallowing his claim for benefits, in this circumstance.


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uploaded 2003/12/22