STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

RICHARD S  JADOWSKI, Employee

WILLIAM A HEIN CONSTRUCTION CO INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 94602256MN


Pursuant to the timely petition for review filed in the above-captioned matter, the commission has considered the petition and all relief requested. The commission has reviewed the applicable records and evidence and finds that the appeal tribunal's findings of fact and conclusions of law are supported thereby, and adopts such findings and conclusions as its own, except as herewith modified:

In line 4 of paragraph 2 of the appeal tribunal's FINDINGS OF FACT AND CONCLUSIONS OF LAW, "his doctor" is deleted and "the doctor of the employer's insurance carrier" is substituted therefor.

DECISION

The appeal tribunal decision is modified to conform with the foregoing and, as modified, is affirmed. Accordingly, the employe's entitlement for week 3 of 1993 is reduced by $152. The employe is ineligible for benefits beginning in week 4 of 1994. He is required to repay the sum of $2,339 to the Unemployment Reserve Fund.

Dated and mailed November 10, 1994
105 - 1033   BR 346

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

MEMORANDUM OPINION

The commission has modified the appeal tribunal decision to reflect that the employe's doctor had not indicated that the employe had reached a healing plateau. Affirmance of the appeal tribunal decision otherwise is appropriate, though, for the following reasons. First, while it may be the department's policy not to treat vocational rehabilitation training allowances as temporary total disability payments, the commission is not bound by such policies. As the administrative law judge reasoned, sec. 108.04 (12)(e), Stats. makes no distinction between payments for temporary disability and rehabilitative training. In addition, the purposes for the two payments are similar. Further, sec. 102.43 (5), Stats. includes within the ambit of temporary disability during which compensation shall be payable, times the employe is receiving instruction under the Vocational Rehabilitation Act. Given these factors, the commission must conclude that the payments the employe received are temporary total disability payments within the meaning of sec. 108.04 (12)(e), Stats.

 


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