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


CHARLIE J NEITZEL, Employe

NEWPORT BUILDERS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98001567BO


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.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employe is ineligible for unemployment benefits beginning in week 11 of 1998, and until the employe is able to work and available for work.

Dated and mailed: January 7, 1999
neitzch.usd : 135 : 1  SW 835.07

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission has reviewed the testimony taken at the remand hearing. After careful deliberation, the commission concludes that the employe's restrictions still render him available for less than 15 percent of the suitable work in his labor market. On remand, the labor market analyst testified that even with a restriction of medium physical demand, the employe's availability was limited to 4.96 percent of the suitable work in his labor market. The labor market analyst also testified that the most significant factor in this case was whether the employe could reach. The undated unsigned medical form the employe submitted as evidence indicated that the employe's reaching restriction was limited to occasionally, (1-33 percent). The labor market analyst noted that it was unclear whether the reaching referred to repetition or length of reaching. The employe testified that he can fully extend his arm about one-third of the time in an hour. The ALJ noted that the employe appeared to have no problem extending his arms fully with his fingers outreached from his shoulder and away from his body. Based on the explanation and demonstration, the labor market analyst found that the employe would nonetheless be available for less than five percent of the suitable work in his labor market since he could only reach one- third of the time.

After the October 26, 1998 remand hearing, the employe submitted a copy of a letter prepared by his treating physician clarifying the Mile Bluff Medical Center form admitted into the record as Exhibit 1. The doctor opined that he limited the employe's frequency of reaching to 33 percent "in relationship to a workday and not a percentage of `normal'". This information was not made available to the labor market analyst who testified in person at the remand hearing. The labor market analyst's opinion was based only on the unsigned, undated medical form, Exhibit 1 and by observing the employe reach.

The purpose of the remand hearing was to permit the employe an opportunity to obtain a clarification or an updated medical form outlining his restrictions so that this evidence could be produced at the remand hearing. The commission therefore will not consider the doctor's letter submitted after the remand hearing in view of the fact that the employe could have obtained this information prior to the remand hearing. The labor market analyst was deprived of an opportunity to review the letter in conjunction with the other evidence. Moreover, even if the commission were to consider the letter, the commission does not believe it refutes the labor market analyst's opinion.

In sum, the commission is satisfied that the employe has not established that his medical restrictions render him able and available for at least 15 percent or more of the suitable work in his labor market. Accordingly, the appeal tribunal decision issued on May 8, 1998 is affirmed. The commission does advise the employe that if his restrictions have been lifted or altered, he may wish to seek a redetermination as to his availability.

cc: TIMOTHY GREENYA
VOCATIONAL SERVICES


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