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


COREEN L WENZEL, Employe

TROSTEL SPECIALTY ELASTOMERS GROUP INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99001947JV


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 makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked for about 14 years as a laborer for the employer, a manufacturer of urethane and plastic products. Her last day of work was April 7, 1999 (week 15), when her employment came to an end. She initiated a claim for unemployment compensation on March 29, 1999 (week 14).

The initial issue which must be decided is whether the employe quit, was suspended or was terminated. If the employe quit, a secondary issue is whether the employe's quitting was for any reason which would permit the immediate payment of unemployment benefits. If the employe was suspended or terminated, a secondary issue is whether the suspension of employment by the employe or suspension or termination by the employer was because the employe was unable to do or unavailable for, any suitable work available with the employer. The final issue is whether the employe was able and available for work in the labor market at the time the claim for unemployment benefits was initiated.

In September 1998, the employe was diagnosed with recurrent overuse syndrome involving her upper extremities. In December 1998, the employe was placed on medical restrictions which mandated that she lift no more than five pounds and that she grip no more than 30 pounds. In March 1999, the employe's restrictions became permanent. Prior to March 1999, the employer tried to accommodate her restrictions (which were not designated permanent as of yet) by placing her on temporary assignments involving light duty and/or by temporarily altering her assignments to comply with her restrictions. When the employe's restrictions became permanent, the employer tried to find the employe a permanent position which would accommodate her restrictions, but no such position was available with the employer. The employer was unwilling to allow the employe to continue working in temporary positions, once her restrictions became permanent-because the accommodations for the employe were meant to be only temporary. The employe conceded that she was unable to perform, because of her restrictions, any position which was available with the employer as of April 7, 1999. On April 7, 1999, the employe and employer met and agreed that no work was available for the employe within her restrictions, however, the employe did not say she quit and the employer did not terminate her.

The employe has experience working as a secretary, manicurist, and hostess, among other things. A Certified Expert Report on Labor Market Conditions provides that the employe, with her restrictions is able to perform 16.09 percent of all suitable work in her labor market. With respect to the comment by the dissent that the employe's doctor opined she could not work, this was not based on her physical limitations but on his belief she should seek vocational rehabilitation services or seek other work. Indeed, the employe had been working subject to the restrictions which later became permanent as outlined above. When the entire report is read in conjunction with Exhibit 1, it is clear that Dr. Kolar believes she could not perform her job with the employer, but should seek either a different job as directed by the Department of Vocational Rehabilitation.

The commission determines that the employe quit her employment with the employer because she was unable to do her work, but had no reasonable alternative. The employe credibly testified that she did not wish to quit her job, and would have continued working for the employer had it been able to provide work within her restrictions. Likewise, the employer did not discharge the employe and would have been willing to put her to work in any job which it had that fit within her restrictions. The employe had exhausted all reasonable alternatives to quitting, by requesting and working light duty.

The commission therefore finds that in week 15 of 1999 the employe terminated her work because she was unable to do her work and had no reasonable alternative, within the meaning of Wis. Stat. § 108.04(7)(c), but that she was able to work and available for work as of week 14 of 1999. As a result, benefits are allowed.

DECISION

The decision of the administrative law judge is modified, and as modified is affirmed. Accordingly, benefits are allowed as of week 15 of 1999.

Dated and mailed September 10, 1999
wenzeco.urr : 145 : 6  AA 105

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

NOTE: The commission modified the ALJ's order because it believes that under the facts presented in this case, the employe quit because she was unable to do her work. While she may not have wished to quit her employment with the employer she simply was unable to physically perform any work for the employer. Pursuant to Wis. Stat. § 108.04(7)(h) benefits paid to the employe should be charged to the fund's balancing account.

 

Pamela I. Anderson, Commissioner (Dissenting)

I am unable to agree with the result reached by the majority herein and I dissent. I would have remanded this case for live labor market testimony because I do not believe that the COED report adequately measures the employe's availability for work. The employe is restricted to lifting 5 pounds with repetitive movements and limited to a 30 pound grip. The medical report (Exhibit 6) also indicates that as of April 12, 1999 that the claimant cannot work due to medical conditions reported on the form pending voc. rehab.

There is also confusion about what the doctor means by she cannot work response. Does it mean she can not work at all or only that she can not work as a machine operator.

The COED report puts the employe in the sedentary category that is defined as "restricted to lifting, carrying, pushing, or pulling less than 10 pounds or is required to sit most of the time, and can only walk or stand occasionally, then s/he is available for sedentary work only." The employe is restricted by the amount of weight she can lift but 5 pounds makes her available for less work than if she can lift 10 pounds.

For this reason, I believe we need live testimony on what the 5 pound restriction means to her availability. Some of the suitable jobs for the employe involve repetitive motions. Cooking for example involves stirring, chopping, slicing and lifting of objects weighing over 5 pounds. Therefore, I would remand for live labor market testimony.

/s/ Pamela I. Anderson, Commissioner


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