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


PATRICK T RYAN, Employe

CHIPS EXPRESS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99600596WB


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 upon its review, and upon evidence from the June 14, 1999 remand hearing, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked for the employer, a household moving company, for approximately a year and a half as a loader/driver. His last day of work was November 30, 1997 (week 40), when he sustained a work-related injury. The issues to be decided are whether the subsequent suspension of employment by the employe or suspension or termination by the employer was because the employe was unable to do or unavailable for, suitable work available with the employer and if so, whether the employe was able to work and available for work in the labor market at the time the claim for unemployment insurance was initiated. The commission concludes that the employe was able to work and available for work, within the meaning of Wis. Admin. Code § DWD 128.01(2), and so reverses the appeal tribunal decision.

The Wisconsin statutes provide that a claimant is not eligible for unemployment insurance unless he or she is able to work and available for work. The Wisconsin Administrative Code implements the statutes and provides that a claimant will not be considered "able and available" if he or she, without good cause, restricts him or herself to less than 50 percent of the full-time opportunities for suitable work in the labor market, if his or her physical condition or uncontrollable circumstances limit him or her to less than 15 percent of the opportunities for suitable work in the labor market, or if he or she, without good cause, fails to report to the public employment office for an eligibility review interview.

On December 22, 1998 (week 52), the employe was released to return to work with restrictions. The employer did not have any work to accommodate the employe's restrictions; therefore, he was unable to return to work for the employer.

The employe has lateral epicondylitis of the left elbow. Because of this condition, he is restricted to medium work and occasional reaching, handling, and fingering (i.e., picking, pinching). Based upon these restrictions, he is able to perform 40 percent of the suitable work in his labor market. (1) The employe therefore meets the 15 percent minimum ability to work requirement of Wis. Admin. Code § DWD 128.01(2).

The commission therefore finds that, in week 52 of 1998, the employe's employment was terminated by the employer because the employe was unable to do, or unavailable for, suitable work otherwise available with the employer, within the meaning of Wis. Stat. § 108.04(1)(b)1, but that as of that time the employe was able to work and available for work on the general labor market, within the meaning of said section.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is eligible for unemployment insurance beginning in week 52 of 1998, if he is otherwise qualified.

Dated and mailed August 3, 1999
ryanpat.urr : 105 : 1  AA 105

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision in this case. The credibility of witnesses was not at issue in the administrative law judge's original decision. In addition, the commission's reversal is based upon testimony by a Department of Workforce Development labor market expert, testimony not available to the administrative law judge when she issued her decision.

PAMELA I. ANDERSON, COMMISSIONER (dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. There were two hearings in this case. At the first hearing the employe presented at 474 report from his doctor which indicated that the employe could do medium work and was able to reach, handle and finger from 1-33% of the time. The employe testified at the first hearing "The last time I saw the doctor was 01/11/99. I went in to have the doctor look at my thumb and I dropped off the papers for the doctor to sign. My thumb had nothing to do with my other injury. I have problems with my fingers getting numb on my left hand. If I pick something up I don't know if I'm going to drop it. Sometimes I don't have the ability to pick anything up with my left hand. I don't try to pick up anything with my left hand. I am left-handed."

The labor market report from the first hearing indicated that the employe was not able and available for over 15% of suitable work and denied benefits. At the second hearing a labor market analyst testified in person. He testified "His lifting restriction is not severe. His reach restriction is somewhat severe, but with his clarification I would still expect he could perform 40% of the jobs in his labor market. An updated report from the doctor could change my opinion but what I find is that often times doctors are giving their report in the best interest of what they think is helping the patient and therefore they're more restrictive than the patient really should be restricted to."

At the second hearing, the employe testified about a functional capacities test he had taken on November 18 & 19. The test indicated that could lift 10 pounds from the floor to 30" height 0 to 5% of the time and eight pounds from the floor to 30" height 26% to 50% of the time. He could lift 7.5 pounds from 30" to 47" height 0 to 5% of the time and 5 pounds 26 to 50% of the time. In the carry-weight in pounds test, he was able to carry 75 pounds with his right hand from 0 to 5% of the time and 60 pounds with his right hand 26 to 50 % of the time. He was only able to carry 4 pounds with his left hand for 0 to 5% of the time and three pounds with his left hand for 26 to 50% of the time. He was able to lift 5 pounds from 30" to 67" in height 0 to 5% of the time and three pounds 26 to 50% of the time. This last category was not limited to his left hand.

Based on all the testimony and the reports from both hearings, I believe that labor market analyst did not consider the employe's testimony from the first hearing and he also discounted the 474 because he believed that the doctor was too restrictive in his report. While it would be true that the employe was able and available by the time he began working his last job which is approximately the middle of March 1999, I do not believe that the employe was able and available at the first hearing in February based on the doctor's report and his own testimony. I would remand for testimony on exactly when he started the new position and additional evidence from his doctor as to his restrictions prior to his return to work.

____________________________________
Pamela I. Anderson, Commissioner


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


Footnotes:

(1)( Back ) The dissent asserts that the labor market analyst did not consider the employe's testimony from the first hearing. The labor market expert testified that he had reviewed the employe's record and had heard the additional testimony provided at the remand hearing. The issue in the case, as evidenced by the original notice of hearing, the February 11, 1999 appeal tribunal decision, and the January 15, 1999 UCB-474, was the employe's ability to work as of December 20, 1998. The commission has no reason to believe the labor market analyst could not understand this aspect of the case.