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

CHRISTINE M JONES, Employee

GLEN OAK LUMBER & MILLING INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 09001693BO


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, except that it makes the following modifications:

The third, fourth, and fifth paragraphs of the FINDINGS OF FACT and CONCLUSIONS OF LAW section (beginning on the first page and continuing onto the second page of the decision) are deleted, and the following substituted:

On January 8, 2008, the employee was placed on medical leave due to an injury she suffered outside of work. The employee remained on leave until her medical restrictions were removed on or around April 20, 2009.

The employee failed to sustain her burden to prove that she was able to work during her period of leave, i.e., that the physical condition for which she was granted medical leave permitted her to perform some suitable work.

The third full paragraph on page 2 of the decision is deleted.

The reference to "week 5" in the DECISION section is changed to "week 8."

DECISION

The decision of the administrative law judge, as modified, is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 8 of 2009 and until she is able to work and available for work. The employee is required to repay the sum of $2,358 to the Unemployment Reserve Fund. This determination also results in an overpayment of federal additional compensation (FAC) benefits that must be repaid. You will receive a separate "UCB-25 Notice of Federal Additional Compensation Overpayment" regarding the amount of FAC benefits that must be repaid.

Dated and mailed September 11, 2009
jonesch . umd : 115 : 5   AA 105  PC 714.03

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION


The employee has worked more than three years as a machine operator for the employer, a hardwood lumber remanufacturer, and remains employed by the employer.

The employee injured her back outside of work, and was placed on medical leave on February 16, 2009. The employee presented work restrictions to the employee (exhibit #4, pages 6 and 7)) indicating, on February 27, that she could perform light work only, and, on March 13, that she could perform light medium work only. The employer did not offer the employee work until her medical restrictions were removed on or around April 20, 2009.

The employee filed a claim for benefits on February 16, 2009 (week 8).

The file in this matter indicates that the department mailed the employee a UCB- 474 form prior to hearing, but neither a completed UCB-474 form, nor any other certified or properly verified medical report, was provided to the department.

The employee did not appear for the properly noticed hearing on the merits of her claim, and has provided no explanation for this failure.

It is the employee's burden to prove, in order to be eligible for benefits, that she was able and available for work. Wis. Stat. § 108.04(1)(b); Wis. Adm. Code § DWD 128.01(3). This would require that the employee establish, through competent evidence, that the condition for which she was granted medical leave permitted her to perform some suitable work. There is no competent evidence to this effect in the hearing record. The work restrictions received by the employer from the employee are not certified or otherwise properly verified, and do not constitute competent evidence as to her medical condition, or as to her ability to work.

The ALJ's reliance in his decision on a COED report is misplaced. A COED report, by operation of Wis. Stat. § 108.09(4n), may constitute prima facie evidence as to its contents. However, here, the COED report is based upon medical restrictions not established through competent evidence, and, consequently, may not establish the employee's ability to perform suitable work.

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uploaded 2009/10/23