Wis.LIRC UC Decision: Mojica Sr., Daniel - November 16, 2012 - AA 200 - Able and Available As To Work Generally - AA 240 - Health - Physical Condition - Employee with physical restrictions - Although Wis. Admin. Code Sec. DWD 128.01(3)(a)does not specify what is necessary to qualify as "some substantial gainful employment" in suitable work, the department's disputed claims manual advises adjudicators that if an individual is found able to do 25 suitable jobs in the labor market, he or she may be considered able to do some substantial gainful employment. The COED reports concluded that the employee could perform 17 suitable jobs in the labor market, representing about .05% of the suitable full and part time jobs. Without adopting a bright-line rule for what qualifies as "some substantial gainful employment," the commission found that the number of suitable jobs that the employee had shown the ability to perform in this case was not sufficient to show an ability to perform suitable work.

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

DANIEL K MOJICA SR, Employee

EARTHGRAINS BAKING COMPANIES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 12002027MD

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:

In the first sentence of the first paragraph under the ALJ's FINDINGS OF FACT and CONCLUSIONS OF LAW, delete "year" and replace it with "years".

DECISION

The decision of the administrative law judge, as modified, is affirmed. Accordingly, the employee is ineligible for unemployment benefits beginning in week 15 of 2012, and until the employee is able to work and available for work.

Dated and Mailed November 16, 2012

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

MEMORANDUM OPINION

The employee stated in his petition for review that the labor market analysis in evidence in this case concluded that he had the physical ability to perform some driving jobs, and therefore he should be considered able and available for work.

The Department's standards for assessing ability to work are set out in Wisconsin Admin. Code § DWD 128.01(3)(a):

Able to work means that the claimant maintains an attachment to the labor market and has the physical and psychological ability to engage in some substantial gainful employment in suitable work. During any week, a claimant is not able to work if the claimant is unable to perform suitable work due to a physical or psychological condition. In determining whether the claimant is attached to the labor market and able to perform suitable work, the department shall consider all factors relevant to the circumstances of the case, which may include the following:
1. The claimant's usual or customary occupation.
2. The nature of the restrictions caused by the claimant's physical or psychological condition.
3. Whether the claimant is qualified to perform other work within the claimant's restrictions considering the claimant's education, training, and experience.
4. 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.

The employee's customary occupation was truck driver. He had a physical condition, namely bilateral wrist tendonitis and a left shoulder injury, making him unable to perform his customary job, and for which, as of May 9, 2012, he had the following restrictions: sedentary work only, no more than occasional stooping, crouching, handling, and kneeling, no climbing, no crawling, reaching limited to one-third normal, fingering limited to one-third normal dexterity, and an inability to balance. He had prior work experience as a taxi driver.

The administrative rule does not specify what is necessary to qualify as "some substantial gainful employment" in suitable work. The department's disputed claims manual advises adjudicators that if an individual is found able to do 25 suitable jobs in the labor market, he or she may be considered able to do some substantial gainful employment. The employee fell short of this measure. The Conditions of Employment Database (COED) reports in evidence concluded that the employee could perform 17 suitable jobs in the labor market. This represents about .05% of the full and part time jobs that were suitable for the employee in the labor market. Without adopting a bright-line rule for what qualifies as some substantial gainful employment, the commission finds that the number of suitable jobs that the employee had shown the ability to perform in this case was not sufficient to show an ability to perform suitable work.

The commission notes that as of the date of hearing, June 21, 2012, the employee was scheduled to see an orthopedic surgeon on July 2, 2012. The employee also mentioned at the hearing that he believed he had received something in the mail stating that he was no longer restricted to sedentary work, but he did not have that document at the hearing. So long as the employee is claiming benefits, it would be advisable for him to notify the department of any change in his restrictions, as it may have an effect on his eligibility for benefits.

mojicda . umd : 107 : 2

cc: Earthgrains Baking Companies Inc., Madison, WI 53704

[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]

uploaded 2012/12/14