STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)
LAURA A SHARPLESS, Employe
CITY OF OSHKOSH, Employer
UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98400148OS
On December 24, 1997, the Department of Workforce Development issued an initial determination in the above-captioned matter which held that in week 49 of 1997 the employe's employment was terminated because she was unable to perform suitable work otherwise available with the employer, and that the employe was not able to work and available for work. As a result, benefits were denied. The employe filed a timely appeal and a hearing was held before an appeal tribunal. On February 6, 1998, the appeal tribunal issued a decision which affirmed the initial determination. The employe filed a timely petition for commission review of the appeal tribunal decision.
Upon its initial review of the record the commission determined that further evidence was necessary and, therefore, remanded the matter for the taking of such evidence. Based on the applicable law, records and evidence in this case, the commission now makes the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The employe worked for the employer, a municipal government, for about eight years, most recently as a sanitation operator.
The employe was off work for some period of time due to a work- related injury. She returned to work on November 26, 1997, with physical restrictions. The return-to-work statement signed by the employe's physician stated the employe could lift 15 pounds maximum, could stand constantly, but no "static prolonged," and could sit frequently, provided her sitting was limited to one hour consecutively. Based on the employe's restrictions, the employer concluded that she was unable to perform her job and discharged her on December 5, 1997 (week 49).
The first issue to decide is whether the employe's separation was a discharge because she was unable to do suitable work otherwise available with the employer, within the meaning of Wis. Stat. § 108.04(1)(b)1.
The employer contended that the jobs in the street and sanitation division are physically demanding, and that the employe would have been unable to perform such work. Although the employe disagreed and identified a number of positions she felt she could perform, many of those positions were only seasonal or temporary in nature, and the record did not establish that any of those jobs were actually available. Given these circumstances, the commission concludes that the employe's employment was terminated because she unable to do suitable work otherwise available with the employer.
The next issue to decide is whether the employe was otherwise able to work and available for work as of the week at issue.
An employe is not considered to be able to work or available for work in any given week if the employe, without good cause, restricts his or her availability for work to less than fifty percent of the full-time opportunities for suitable work in the labor market or if the employe's physical condition limits him or her to less than fifteen percent of the opportunities for suitable work in the labor market. Wis. Admin. Code § DWD 128.01(2).
At the remand hearing a labor market analyst for the department, who is an expert in this area, testified that, if the employe is able to perform light work, she is available for approximately forty-five percent of suitable work. However, if she is limited to sedentary work, she is available for less than fourteen percent of such work. Thus, if the employe can perform light work she is able to work and available for work, but if she is limited to sedentary work, she is not.
As of the week at issue, the employe was able to lift up to fifteen pounds to shoulder height, could stand for three hours, although not in one position for a prolonged period of time, and could sit for six hours, provided she did not do so for more than an hour at a time. The appeal tribunal found that, based upon these restrictions, the employe was limited to sedentary work and, therefore, was not available for fifteen percent of the suitable jobs in her labor market. The commission disagrees. For the purposes of determining how much work a claimant is able to perform, the department generally considers the "sedentary" category to apply only to those individuals restricted to less than ten pounds of lifting, carrying, pushing or pulling, or who are required to sit most of the time. The department's labor market expert testified that, where the employe was able to lift fifteen pounds, she was not limited to sedentary work and was more appropriately characterized as having a "light" work restriction.
The commission, therefore, finds that in week 49 of 1997 the employe's employment was terminated by the employer because she was unable to do suitable work otherwise available with the employer, within the meaning of Wis. Stat. § 108.04(1)(b)1., and that the employe was able to work and available for suitable work within her labor market.
DECISION
The appeal tribunal decision is reversed. Accordingly, the employe is eligible for benefits beginning in week 49 of 1997, provided she is otherwise qualified.
Dated and mailed: December 4, 1998
sharpla.urr : 164 : 6 AA 240
/s/ David B. Falstad, Chairman
/s/ Pamela I. Anderson, Commissioner
/s/ James A. Rutkowski, Commissioner
NOTE: The commission did not confer with the administrative law judge regarding witness credibility. The commission's reversal is not based upon any differing assessment of witness credibility, but is as a matter of law.
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