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

MARY A ROHDE, Employee

HOLIDAY INN EXPRESS & CONFERENCE CENTER, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06003209FL


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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The employee's petition is accepted for commission review. The decision of the administrative law judge is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 27 of 2006, and until she is again able to work and available for work.

Dated and mailed December 6, 2006
rohdema . usd : 115 : 1   PC 731  PC 714.06

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION


Late petition

The appeal tribunal decision was dated and mailed on September 29, 2006, and stated an appeal deadline of October 20, 2006.

The employee's appeal was sent and received through facsimile transmission. The transmission information printed on her appeal states that it was sent on October 20, 2006, at 18:24 [6:24 p.m.]. October 20 was a Friday. The appeal was date-stamped by the department on October 23, 2006, at 8:01 a.m.

Wisconsin Administrative Code § LIRC 1.025(3) provides, in relevant part, as follows:

(3) Petitions for review may be filed by facsimile transmission. A petition for review transmitted by facsimile is not deemed filed unless and until the petition is received and printed at the recipient facsimile machine of the commission or of the division of the department to which the petition is being transmitted. The party transmitting a petition by facsimile is solely responsible for ensuring its timely receipt. The commission is not responsible for errors or failures in transmission. A petition for review transmitted by facsimile is deemed filed on the date of transmission recorded and printed by the facsimile machine on the petition.

Here, the date of transmission recorded and printed by the transmitting facsimile machine was October 20, 2006. By operation of Wis. Adm. Code § LIRC 1.025(3), that is the date the appeal is deemed to have been filed. Since October 20 was the appeal deadline stated on the appeal tribunal decision, the employee's petition for commission review was timely filed.

Merits

The issue is whether the employee was able and available for suitable work, within the meaning of Wis. Stat. § 108.04(2)(a), on or after week 27 of 2006, the first week for which she claimed benefits.

The document marked by the ALJ as exhibit #1 at hearing is a UCB-474 signed by the employee's treating physician on July 31, 2006. The physician opines in this document that, as of July 2, 2006 (week 27), the employee was restricted to sedentary work and to working no more than 8 hours per day and 24 hours per week.

The document marked by the ALJ as exhibit #2 at hearing is a note from the employee's treating physician dated August 10, 2006, stating that she "may work 24-32 hours."

Exhibit #3 is a labor market report created on August 25, 2006, and stating that, given the employee's restriction to sedentary work, she was able to perform less than 5% of all suitable work in her labor market.

At the September 18 hearing, the ALJ, in response to the employee's testimony that she believed her physician would have changed her restrictions after July 31 and August 10, provided her a blank UCB-474 form, indicating that, if she had this completed by her treating physician and returned to the hearing office, he would mark it as hearing exhibit #4. The ALJ also indicated to the employee that, if he received this second completed UCB-474 form, he would generate a labor market report based on the updated information from the physician and mark it as hearing exhibit #5.

The employee did have this UCB-474 form completed and returned to the hearing office. It was, however, not marked by the ALJ. The commission, as a result, has marked this document as hearing exhibit #4 with a notation that the mark was affixed by the commission consistent with the ALJ's statement at hearing.

In this second UCB-474 form, which was completed by the employee's treating physician on September 22, 2006, he indicates that, as of September 21, 2006, the employee was able to lift up to 20 pounds (light work), and work no more than 8 hours per day and up to 24 hours per week.

Apparently, the ALJ, based on this new information, generated a second labor market report on September 29, 2006. However, he failed to mark it as a hearing exhibit. The commission, as a result, has marked this two-page document as hearing exhibit #5 with a notation that the mark was affixed by the commission consistent with the ALJ's statement at hearing. Given that the ALJ issued his decision on September 29, he could not have shared this report with the parties before issuing his decision.

This September 29 labor market report states that, based upon the employee's restriction to light work and to 23 or fewer hours of work each week, she is able to perform less than 5% of all suitable work in her labor market.

Finally in regard to the hearing exhibits, in the case file, a note dated September 14, 2006, which appears to be from the employee's treating physician, was taped to a yellow sheet of paper and marked as hearing exhibit #2. However, this document was not identified in the hearing record, and was not specified by the ALJ as one of the documents he would consider if submitted after the hearing. As a result, this document has been separated from the marked hearing exhibits, and placed elsewhere in the case file with a note that it is not one of the exhibits offered or received into the hearing record.

Wisconsin Statutes § 108.04(2)(a)1. requires that, in order to qualify for benefits, a claimant is required to be able and available for work. A claimant is not considered to be able to work or available for work in any given week if her physical condition limits her to less than fifteen percent of the opportunities for suitable work in her labor market. Wis. Admin. Code § DWD 128.01(2).

The expert medical and labor market evidence of record shows that, as of week 27 and thereafter, the employee's physical condition limited her to less than five percent of suitable work in her labor market. Consequently, the employee has failed to show that she was able and available for work during this period of time.
Although it would have been a better practice for the ALJ to have provided a copy of the September 29 labor market report to the parties and given them an opportunity to object to it before he issued his decision, his failure to do so, given its consistency with the earlier August 25 labor market report, and in the absence of objection from the employee in her petition, would not provide sufficient justification for reversal or remand under the circumstances present here. See, Mills v. Emmpak Foods, Inc., UI Hearing No. 03605739MW (LIRC Jan. 8, 2004); Morgan v. Eckert Door Co., Inc., UI Hearing No. 98602750MW (LIRC Aug. 4, 1998).

cc: Holiday Inn Express (Fond du Lac, Wisconsin)



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