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

LISA M MEADOWCROFT, Employee

WAL-MART ASSOCIATES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06001227MD


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, and after consultation with the administrative law judge, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked approximately three years as an optician for the employer, a discount department and food store chain. In June, 2004, the employee exacerbated a 20-year-old back injury. She returned to work after several weeks with medical restrictions. After she returned to work, she had trouble with her supervisor related to her medical restrictions.

On July 11, 2005, the employee began a medical leave of absence under the Family Medical Leave Act. In October 2005, the employer agreed to extend her leave of absence.

On December 12, 2005, the employee's doctor again released her to return to work with medical restrictions. On December 14, 2005 (week 51), after initially directing the employee to report to work, the employer informed her that it did not have a position for her. However, it agreed to extend her leave for another 30 days during which time it would recall her to any job she was physically capable of performing. That day, she initiated a claim for unemployment insurance benefits. (1)

By letter dated January 26, 2006, the employer advised the employee that her 30-day leave had expired as of January 16, 2006 and, because the employer still did not have a job within her restrictions, her employment was terminated as of January 16, 2006 (week 3).

A Medical Report (Form UCB-474), signed and certified as correct by the employee's doctor on February 22, 2006, indicated that the employee was being treated for severe degenerative disc disease. The doctor attached the employee's return to work recommendations to the certified medical report; the recommendations reflected that, as of December 12, 2005 (week 51), the employee was able to perform light-duty work lifting up to ten pounds frequently with a twenty pound lifting maximum. The employee was to avoid climbing or using stairs. She was to stand or walk no more than four hours in an eight-hour work day with no more than 15 minutes of standing or walking before being allowed to return to a sitting position. The employee could remain sitting for three to five hours without standing. She could use her hands for single grasping, fine manipulation and for pushing and pulling. She could use her feet and/or legs for repetitive movement, as in operating foot controls, without restriction. She could frequently reach. She could occasionally bend, twist, squat and climb. She was not to perform work for more than four hours in a day or more than three days in a row after which she was to have two days without any return to work. These restrictions were drafted by the employee's physician after she discussed her desire to return to work for the employer. The doctor stated that the employee could increase the number of hours she worked in a day as tolerable.

In addition to the employee's work experience as an optician, she worked ten years as a receptionist. She sold shoes in a retail environment for five years and sold advertising for radio for approximately six months. She worked as an administrative assistant for a year and as a medical assistant for a medical clinic for approximately one year. She worked as a city assessor's assistant for one year. She is a high school graduate and has attended college for several years. She also attended technical school for medical assistant and radio broadcast work.

Also of January 3, 2006 (week 1), the employee was hired under a two-week training program to provide telephone transcription services. During the training program, the employee worked six hours a day, five days a week. On January 13, 2006 (week 2), the claimant was informed that she would not be hired because she did not type fast enough. The claimant credibly testified that this work was within her physical abilities as she could alternate between standing and sitting.

A labor market analyst testified at the hearing in this matter. Essentially, he indicated that the main limitation affecting the employee's eligibility was her hourly/days of the week work restriction. If the employee were able to and available for less than full time work, defined as 35 or more hours per week, then she would be able to and available for work for less than 15 percent of the suitable work in her labor market. If she was able to and available for full time work, with a sedentary work restriction, she was able to and available for 19 percent of the suitable work in her labor market.

Wis. Stat. § 108.04(1)(b)1 provides that a worker is ineligible for benefits:

While the employee is 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, except as provided in par. (c);  (2)

The issues to be decided are whether the employee quit or was terminated by the employer because the employee was unable to do or unavailable for, any suitable work available with the employer and if so, whether the employee was able to work and available for work in the labor market as of week 3 of 2006.

The employer did not appear at the hearing in this matter and the employee contended that she was discharged by the employer and should be eligible for unemployment insurance benefits. This contention must be sustained. In particular, it is clear that it was the employer's decision to end the employment relationship as of week 3 of 2006. The reason for the termination, as stated in the January 26 letter was because the employer did not have any work available within the employee's restrictions. As such, the employee's termination falls squarely within Wis. Stat. § 108.04(1)(b)1 and the employee's eligibility hinges upon her ability to work and availability for work in the general labor market.

The Wisconsin Administrative Code implements the statutes and provides that a claimant will not be considered able to work and available for work if his or her physical condition or uncontrollable circumstances limit him or her to less than 15 percent of the opportunities for suitable work in the labor market.

The employee asserted that, as of week 3 of 2006, she was able to work and available for full-time work within the physical restrictions set by her physician. The commission credits her assertion. In particular, the employee worked within her restrictions 30 hours per week the prior two weeks without complication. Additionally, her assertion was not contrary to her doctor's restrictions as the doctor provided her with the ability to increase her hours of work as tolerated.

The commission therefore finds that as of week 3 of 2006, the employee's employment was terminated by the employer because the employee was unable to do or unavailable for suitable work otherwise available with the employer but that as of week 3 of 2006, the employee was able to work and available for work within the meaning of Wis. Stats. § 108.04(1)(b)1.

DECISION

The appeal tribunal decision is reversed. Accordingly, the employee is eligible for benefits beginning in week 3 of 2006, if otherwise qualified.

Dated and mailed September 15, 2006
meadoli . urr : 150 : 2   AA 105

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

 

NOTE: The commission discussed witness credibility and demeanor with the administrative law judge prior to issuing a decision in this matter. The administrative law judge found the employee to be sincere in her claims regarding her restrictions and attempts to seek work but denied benefits, concluding that her restrictions were too severe. For the reasons mentioned above, the commission credits the employee's statements that she could tolerate full time work within the sedentary work restrictions.


cc:
Wal-Mart, Portage, WI
Attorney Michael H. Gillick



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Footnotes:

(1)( Back ) Departmental records reflect that an appeal tribunal decision for hearing no. 06000595MD, dealt with the employee's eligibility for benefits as of week 51 of 2005. It held that the employee was able and available for work. The decision was not petitioned and became final.

(2)( Back ) Wis. Stat. §108.04(1)(c) is not applicable to this case as it applies to partial weeks of suspension, termination or leaves of absence.

 


uploaded 2006/09/18