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

LINDA S CRAIG, Employee

NICOLET STAFFING, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 08201724WU


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 as a cleaner for a client of the employer, a staffing agency. The employee suffered a work injury in December of 2007. She subsequently performed light-duty work for the employer until April 18, 2008 (week 16). The employer had the employee in a light duty position until the worker's compensation ended because she had reached the end of healing. The job ended not because of the employee's inability to do the job but because it was no longer available to her.

The issue to be decided is whether the employee was able to work and available for work in her labor market as of week 17 of 2008.

The employee submitted various medical reports in the record. The employee could perform light duty as of April 17, 2008, per one report. A May 19, 2008, report indicated the employee could return to regular duty. A June 23, 2008, report indicated that the employee could perform very light work (10 pounds max) with frequent sitting, standing and walking, seldom bending from waist and no squatting or work floor to waist. The employee's doctor completed a UCB-474 which asked about the employee's ability to work as of July 13, 2008. The doctor indicated the employee could perform light work but was to seldom climb, could not rely on balance, and could occasionally stoop, crouch, crawl or kneel.

The employee had performed work as an assembler, cleaner, clerical support worker, packager, cook, spot welder, food server, and dish washer. The COED reports in the record list light physical demand and indicate an ability to work in 53.45 and 95.09 percent of suitable jobs in the employee's labor market.

Wisconsin Administrative 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 commission finds that the employee was able to work as of week 17 of 2008. The employee had been able to perform light duty work at the end of her employment. Her employment ended not because she could no longer do the work but because the employer no longer had the work available. The employee could perform more than 50 percent of suitable work with a light-duty restriction. Even considering that in certain weeks the employee's restrictions left her able to do only sedentary work, considering the employee's past experience and work she could be trained to perform, the commission concludes that the employee was able to perform work in her labor market.

The commission therefore finds that as of week 17 of 2008 the employee was able to work and available for work in her labor market, within the meaning of Wis. Stat. § 108.04(2)(a) and Wis. Admin. Code ch. DWD 128.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits as of week 17 of 2008, if she is otherwise qualified.

Dated and mailed January 9, 2009
craigli . urr : 132 : 6   AA 105

/s/ 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 of the ALJ's decision is not based on credibility.

The commission notes, as did the department in its petition, that if the commission were to find that the employee was not able to work and not available for work, the employee would have to repay benefits even though benefit checks were issued prior to the date the employee was found not able to work. The law changes to Wis. Admin. Code ch. DWD 128, effective in April of 2008, eliminated the provision that provided that a claimant did not have to repay benefits paid prior to the date the claimant's ability to work was resolved.

 

cc: Attorney Daniel J. La Rocque


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uploaded 2009/01/27