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

BERNICE M BEAUMONT, Employee

ROCKLINE INDUSTRIES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07401989SH


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 decision of the administrative law judge is affirmed. Accordingly, the employee is ineligible for unemployment benefits beginning in week 27 of 2007, and until the employee is able to work and available for work.

Dated and mailed February 26, 2008
beaumbe . usd : 150 : 1   AA 105  PC 714.07  PC 749

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The employee's attorney petitioned the appeal tribunal decision arguing that the ALJ's use of the Conditions of Employment Database report (COED) violated the employee's right of cross-examination and her rights as a person under a disability under "US Stat. sec. 1938." The petition also references a failure to accommodate.

The record reflects that the employee suffers from osteoarthritis of the spine, spinal stenosis, and degenerative joint disease. She has severe physical restrictions which include a sedentary work requirement with the directions to avoid stooping, crouching, crawling, and kneeling. After concluding that her condition was not work related, and when her short-term disability ceased, the employer terminated her employment on July 7, 2007 (week 27), because it was unable to accommodate her medical restrictions. The employee desires to work and is currently working with a rehabilitation counselor to find a position for her. Departmental records reflect that she filed claim for unemployment insurance benefits on July 31, 2007 (week 30).

The employer terminated the employee's employment due to her physical inability to perform work the employer had for her, within the meaning of Wis. Stat. § 108.04(1)(b)1. As stated by the ALJ, the employer was not required to create a position suitable for her. When the employee was discharged under Wis. Stat. § 108.04(1)(b)1, her eligibility for unemployment benefits was dependant upon her ability to work and availability for work in the general labor market.

At the hearing in this matter, a four-page document was marked and received into evidence as Exhibit 6. It was sent out to the employee prior to the hearing with the first page explaining the attached pages. The second page consisted of a COED report generated for the first six weeks of unemployment. The third page contained a COED report expanded to the maximum weeks of unemployment, thus encompassing more jobs. Finally, the fourth page described the positions entered as a foundation of the employee's work experience. Both COED reports reflect that the employee's physical restrictions limit her to less then 5 percent of the suitable work in her labor market.

Exhibit 6 was received over the objection of the employee's attorney. The attorney argued that the employee's testimony that she was able to work and available for work should overcome the report generated by a computer. Yet, a COED report may constitute prima facie evidence of the matters contained therein pursuant to Wisconsin Statute § 108.09(4n), which provides:

EMPLOYMENT DATA SYSTEM REPORTS. 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.

The record reflects that the above criteria were met at the hearing. The employee was sent a copy of the report prior to the hearing and given the opportunity to review and object to the report including the accuracy of the information. The report did set forth the information used in reaching its conclusion.

While the employee disagreed with the report's ultimate conclusion, her general testimony that she believed there was some work that she could do, is not sufficient to establish ability to work and availability for work at the 15% threshold set by Wis. Stat. § 108.04(1)(b)1.

Additionally, while the employee's attorney challenges the constitutionality of the statutory provision, the commission does not have the authority to determine the constitutionality of statutes or declare the legislative enactments as unconstitutional. See Wendlandt v. Industrial Comm., 256 Wis. 62, 67, 39 N.W.2d 854 (1949) and Warshafsky v. The Journal Co., 63 Wis. 2d 130, 147, 216 N.W.2d 197 (1974).   Determinations as to the constitutionality of statutes are exclusively vested in the courts. Williams v. Madison, 15 Wis. 2d 430, 113 N.W.2d 395 (1962).

Finally, with respect to the attorney's argument regarding the employee's disablity and accommodation, the commission believes that the attorney was referencing an action under USC § 1983, yet he failed to explain how the employee was discriminated against or what type of accommodation was necessary as it related to the employee's alleged disablity and the receipt of the COED report. If the claimant believes that there is a separate disability violation, the proper forum would be the Equal Rights Division.

For these reasons, the appeal tribunal decision is affirmed.

cc: Attorney William K. Sonnenburg


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