LARRY E EATON, Employee

R & D DRYWALL INC, Employer

Wisconsin Statute § 108.09(6)(c) provides that, for reasons it deems sufficient, the commission may set aside any final determination of the department or appeal tribunal or commission decision within 2 years from the date thereof upon grounds of mistake or newly discovered evidence, and take action under par. (d). Wisconsin Statute § 108.09(6)(d), provides that the commission may affirm, reverse, modify or set aside the decision on the basis of the evidence previously submitted, may order the taking of additional evidence, or it may remand the matter to the department for further proceedings.

Pursuant to authority granted in Wis. Stat. § 108.09(6)(c) and (d), the commission sets aside its decision in the above-referenced matter, on the grounds of mistake, namely, the commission erroneously found that the employee was required to be able to work full time. Based on that mistake the commission issues the following decision in place of its December 30, 2008 decision:

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.

The decision of the administrative law judge is affirmed. Accordingly, the employee is eligible for benefits beginning in week 32 of 2008, if he is otherwise qualified. There is no overpayment as a result of this decision.

Dated and mailed July 27, 2009
eatonla : 132 : 5   PC 735 AA 105

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

The employer has petitioned for commission review of the appeal tribunal decision which found that the employee was able to work and available for work. At the hearing the employer argued that since the employee was able to work in week 32 of 2008, it should not be liable for unemployment benefits in that week. However, the employee did not learn he was able to work for the employer in the week ending August 9 until August 7 or August 8. Even then when he called the employer on August 8, he was not allowed to return until he could obtain a release from his doctor which he could not get until August 12.

The employee was released to work with certain restrictions, including a restriction to working no more than 31 hours per week. An employee with a physical and/or psychological restriction is required to be able to work. However, the employee need not be able to work full time. The employee, in fact, was able to work in week 32 of 2008.

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uploaded 2009/08/11