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

JAMES W MCDONALD, Employee

BESTECH TOOL CORP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 08608578WB


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 makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for the employer, a manufacturer, for ten years as a tool and dye maker. His last day of work was August 24, 2007. The employee initiated a claim for benefits on September 25, 2008 (week 39).

The employee had stents put in his heart in March and April of 2007. He began collecting social security disability based upon his heart condition in March of 2007. In August of 2007, the employee was hospitalized due to an irregular heartbeat and has worn a pace maker since that time. Because of the pace maker the employee is prohibited from working near electromagnetic fields. He must also avoid fumes, cell phones, transformers or machines that are not properly grounded, cannot weld or use an air hammer or jack hammer, and should not work alone. In addition to the restrictions associated with his heart condition, the employee had shoulder surgery on May 6, 2008. As a result, the employee had a 20-pound lifting restriction in September of 2008, which was reduced to a 60-pound lifting restriction in December of 2008. Finally, he is restricted to working 32 hours a week and standing for six to eight hours a day due to foot surgery he underwent in November of 2006.

After receiving the pace maker the employee attempted to return to work for the employer. However, the employer uses magnets on its grinders to hold the block in place, and has a transformer which is in close proximity to other equipment the employee would need to use. Although the employee proposed that he be allowed to try working around the magnets, his doctor did not provide a medical release permitting him to do so, and the employer was unwilling to take that risk.

The employee has applied for a variety of jobs, including working at car dealerships driving and doing minor repairs, cleaning up equipment at rental places, working at hardware stores, shoe stores, and at a sandwich shop. The employee has a high school diploma, and a tool and dye certificate. Virtually all of his work experience has been as a tool and dye maker.

The first issue to be decided is whether the employee's employment was suspended or terminated because he was unable or unavailable to perform suitable work otherwise available with the employer.

The employer has no area in its shop where the employee could work safely, given the requirement that he avoid transformers and electromagnetic fields. His employment was therefore terminated because he was physically unable to perform work the employer had available.

The next question to resolve is whether the employee was able to work and available for work in his labor market as of week 39 of 2008, the week in which he initiated his claim for benefits.

The appeal tribunal found that the employee was not able to work and available for work because he had not worked since August of 2007 and had applied for social security disability benefits. However, the fact that an individual is receiving social security disability benefits does not mean he is unable to work for purposes of unemployment eligibility. In fact, an individual who is claiming social security benefits does not necessarily lose those benefits if he returns to work, suggesting that eligibility for social security benefits and the ability to perform some work are not mutually exclusive.

In determining whether the employee was able to perform suitable work in his labor market for the purposes of unemployment eligibility, the relevant factors to consider are as follows:

(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.

Wis. Admin. Code § 128.01(3).

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. Here, the employee could not perform his customary work for the employer but would have been able to perform other suitable work, such as sales or cashiering. At the hearing a labor market analyst from the department testified that if the employee could work as a sales associate or cashier, and could work 32 hours a week and lift 20 pounds, he would be able to perform 63 percent of suitable jobs in his labor market. There is no indication that the employee was unwilling to perform such work, and he testified he had been applying for a variety of jobs.

The commission therefore finds that in week 34 of 2007 the employee's employment was terminated or suspended because he was physically unable to perform suitable work otherwise available with the employer, within the meaning of Wis. Stat. § 108.04(1).

The commission further finds that, as of week 39 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 128.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 39 of 2008, provided he is otherwise qualified. He is not required to repay the sum of $5,696 to the Unemployment Reserve Fund.

Dated and mailed March 26, 2009
mcdonja . urr : 164 : 1 AA 105

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

NOTE: The commission did not confer with the administrative law judge about witness credibility and demeanor. The commission's reversal is as a matter of law.


 

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