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

MICHAEL ADELL, Employee

NURSES NOW LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07605521MW


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, except that it makes the following modifications:

The reference in the Decision section to "week 32" is modified to "week 33," in recognition of the fact that the record does not establish that the employee had been released to return to work, or was able to work, during week 32.

DECISION

The labor market (COED) report generated after hearing is marked as exhibit #2, and received into the hearing record. The decision of the administrative law judge, as modified, is affirmed. Accordingly, the employee is eligible for benefits beginning in week 33 of 2007, if otherwise qualified. The employee is ineligible for benefits for week 32.  Recovery of overpaid benefits is waived. 

Dated and mailed November 9, 2007
adellmi . umd : 115 : 1  AA 105 PC 714.01 PC 714.06 PC 715

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The employee worked nine months in licensed practical nursing (LPN) assignments for the employer, a temporary agency.

His last day of work was April 8, 2007. On or around April 9, the employee slipped into a diabetic coma and was hospitalized as a result. He was discharged from the hospital and admitted to a rehabilitation facility on May 16, and discharged from this facility on June 21.

Effective August 13, the employee was released to return to work by his treating physician with a restriction to sedentary work and a 10-pound lifting restriction.

The employee did not contact the employer at any time after April 8 because he believed he was physically unable to work in any LPN assignments the employer would have for him.

The actions of the employee were inconsistent with the continuation of the employment relationship, which rendered the separation a quit. This quit satisfied the exception to the quit disqualification stated in Wis. Stat. § 108.04(7)(c), i.e., the employee had no reasonable alternative because he was unable to do his work.

The next question then is whether the employee, at or after the date he filed his claim, was able and available for work.

The labor market (COED) report generated by the ALJ after the hearing, which the commission has marked as exhibit #2 and received into the hearing record, states that the employee is able to perform 14.86% of suitable work in his labor market.

Wisconsin Administrative Code § DWD 128.01(2)(b), renders a claimant with an uncontrollable restriction such as a health condition ineligible if he is limited to less than 15% of opportunities for suitable work.

Since the percentage set forth in the rule is stated as a whole number rather than as a decimal, it is reasonable, in order to properly apply the rule, to round the COED report scores to the nearest whole number. Here, that number would be 15%.

Because the employee was able to perform at least 15% of the suitable work in his labor market, he satisfied the able and available requirement.

The procedure followed by the ALJ in regard to the COED report upon which he relied in reaching his decision raises an additional issue here.

Wisconsin Statutes § 108.09(4n) provides as follows:

If the department maintains a database system consisting of occupational information and employment conditions data, and an employee of the department, including an individual who serves as an appeal tribunal, creates a report from the system, the report constitutes prima facie evidence as to the matters contained in the report in any proceeding under this section if:

(a) The department has provided to the parties an explanation of the system and the reports created from the system prior to admission of the report.

(b) The parties have been given the opportunity to review and object to the report, including the accuracy of any information used in creating the report, prior to its admission into evidence.

(c) The report sets forth all of the information used in creating the report.

Wisconsin Administrative Code § DWD 140.16(2) provides that an administrative law judge may take administrative notice of department records but the parties shall be given an opportunity to object and to present evidence to the contrary before the administrative law judge issues a decision.

This statutory and rule language, and basic considerations of due process, require that a labor market report (COED) generated from a department database, upon which an ALJ relies in reaching a decision, be marked as a hearing exhibit and affirmatively received into the hearing record; and be made available to the parties for their review, with opportunity for objection and the offer of contrary evidence, before it is admitted into evidence and before the ALJ's decision is issued.

The proper procedure if such a report is not available at the time of hearing is to continue the hearing and, after the report is generated, mark it as an exhibit and provide it to the parties and allow them a period of time to review it and to file objections; and, after this period has expired, if there are no objections, to indicate on the hearing record that the report has been received, or, if there are objections, to take further action as appropriate. See, Morgan v. Eckert Door Co., Inc., UI Hearing No. 98602750MW (LIRC Aug. 4, 1998). The language and the spirit of the statute/rule cited above are subverted when waiver of objection to a future COED report is solicited or permitted at hearing.

Although this process was not followed here, this failure, in the absence of objection from the employer in its petition, does not provide sufficient justification for remand under the present circumstances. See, Chang v. Marten Transport, Ltd., UI Hearing No. 03008179MD (LIRC June 2, 2004); Mills v. Emmpak Foods, Inc., UI Hearing No. 03605739MW (LIRC Jan. 8, 2004) (remand not ordered in absence of objection from employer petitioner).

The employee was paid benefits for week 32 because the department failed to take into account the fact that the employee was not released to return to work until August 17 (week 33), and failed to establish that he was able to work prior to that date.  The commission finds that this mistake of fact constituted error on the part of the department as defined in Wis. Stat. § 108.02(10e).

The commission further finds that due to department error and not due to any fault on the part of the employee or the employer, the employee was paid benefits in the total amount of $355 for week 32 of 2007, for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1) but that recovery of the benefits paid shall be waived, within the meaning of Wis. Stat. § 108.22(8)(c).

 

[Ed. Note: This decision is reproduced here as affected by a corrective amendment made on November 29, 2007]



 

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