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

JOCELYN O OSBORNE, Employee

US POSTAL SERVICE, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 08604715MW


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. The Department of Workforce Development filed a timely petition for review.

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 makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for approximately six months as a postal worker for the employer, the United States Postal Service. The employee's last day of work was May 1, 2008 (week 18).

The issues to be decided are whether the employee was discharged for misconduct connected with her work for the employer, whether the employee's employment was suspended by the employee or suspended or terminated by the employer because the employee was unable to do or unavailable for, any suitable work available with the employer and, whether the employee was able to work and available for work in the labor market at the time the claim for unemployment benefits was initiated.

From November of 2007 to January 2008, the employee worked as a clerk for the postal service. This work involved delivering heavy mail to individual carriers. From February 2008 to May 1, 2008, the employee performed work as a substitute postal carrier.

The employee experienced a foot injury to her left foot. This foot condition was ultimately diagnosed as tendinitis. The employee's physician imposed certain restrictions on her ability to work. The restrictions were in place as of May 1, 2008 (week 18). The employee was limited to sedentary work, no stooping, no climbing, no crouching, no crawling, and no kneeling. These limitations are set forth in the UCB-474 certified medical report filled out by her physician. The doctor specifically indicates the employee cannot perform work as a postal worker and is recommended to find "non-weight bearing work."

The employee subsequently followed with care from an orthopedic surgeon. The orthopedic surgeon cleared the employee to return to work with no restrictions as of July 16, 2008 (week 29). The employee was given a special orthopedic insert for her left foot.

On May 1, 2008, the employee suspended her employment because she was unable to perform suitable work otherwise available with the employer. On May 6, 2008 (week 19) the employer discharged the employee stating that she did not get along with her supervisor.

The employee's prior employment history includes work as a customer service representative and as a personal care worker. A labor market report was prepared based upon the information submitted at the hearing. Given the employee's employment history, and the restrictions to her ability to work, the labor market information showed the employee was able to perform 13.19% of the suitable full-time jobs in her labor market for the period between May 1 and July 16, 2008. The employee performed no work for any employer during that period of time.

The only evidence in the record is that the employee suspended her employment in week 18 because she was unable to do her work and that the employer discharged the employee in week 19 for reasons unrelated to her injury. However, the employer did not appear at the hearing to establish that the employee was discharged for misconduct connected with her work for the employer.

The issue therefore becomes whether the employee was able to perform suitable work in her labor market as of week 19 of 2008, the week the employee initiated her benefit claim. Wis. Admin. Code § 128.01(3) provides:

(3) ABLE TO WORK. Able to work means that the claimant has the physical and psychological ability to perform suitable work. During any week, a claimant is not able to work if the claimant is unable to perform any suitable work due to a physical or psychological condition. In determining whether the claimant is able to perform suitable work, the department shall consider all factors relevant to the circumstances of the case, which may include the following:

(a) The claimant's usual or customary occupation.

(b) The nature of the restrictions caused by the claimant's physical or psychological condition.

(c) Whether the claimant is qualified to perform other work within the claimant's restrictions considering the claimant's education, training, and experience.

(d) Whether the claimant could be qualified to perform other work within the claimant's restrictions with additional training.

(e) Occupational information and employment conditions data and reports available to the department showing whether and to what extent the claimant is able, within his or her restrictions, to perform suitable work in his or her labor market area.

Under Wis. Admin. Code § 128.01(3), a claimant is unable to work only if the claimant is not able to perform any work due to a physical or psychological condition. The employee could not perform her customary work for the employer but was able to perform other work for the employer such as office work. In addition, the employee has prior experience as a customer service representative and no evidence indicates that she would have been unable to perform that work due to her restrictions. Finally, the conditions of employment database record established that the employee could in fact perform more than 13% of suitable work in her labor market.

The commission therefore finds that in week 19 of 2008, the employer discharged the employee but not for misconduct connected with her work for the employer within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that as of week 19 of 2008, the employee was able to work and available for work within the meaning of Wis. Stat. § 108.04(2)(a) and Wis. Admin. Code DWD ch. 128.

DECISION

The decision of the administrative law judge is modified to conform to the above findings and, as modified, is reversed. Accordingly, the employee is eligible for benefits beginning in week 19 of 2008, if she is otherwise qualified.

Dated and mailed October 10, 2008
osborjo . urr : 132 : 1 : AA 240

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The commission did not consult with the ALJ regarding witness credibility and demeanor. The commission's reversal is not based on credibility. The commission agrees with the Department's position that the evidence in the record compels a conclusion that the employee was able to work as of week 19 of 2008.

cc: Attorney Daniel J. Larocque


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