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


MICHAEL A JONES, Employe

SHER PROTECTION AGENCY, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99602137MW


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:

Paragraphs 9, 10, and 14 of the appeal tribunal's Findings of Fact and Conclusions of Law are deleted, and the following is substituted therefor:

The employe was released to return to work on light duty. He testified that he cannot do a lot of work. For a time, he had to use a cane. The employe is restricted to sedentary work, without bending, twisting, squatting, or climbing. Based upon these medical restrictions, and considering the employe's training and work history, the employe is able to perform approximately ten percent of the suitable work in his labor market. A minimum requirement for unemployment insurance eligibility, however, is that a claimant be able to perform at least 15 percent of the suitable work in his or her labor market, notwithstanding the uncontrollable medical restrictions the claimant has. Since the employe does not meet this minimum eligibility requirement, he is ineligible for unemployment insurance beginning in week 16 of 1999, and continuing until his medical restrictions are such that he is able to perform at least 15 percent of the suitable work in his labor market.

The employe is not required to repay the unemployment insurance he received for weeks 2 - 15 of 1999. Pursuant to Wis. Admin. Code § DWD 128.01(1), the Department of Workforce Development may not disqualify a claimant on "able and available" grounds for any week for which a benefit check has been mailed prior to the date of an initial determination resolving an eligibility issue under that section, except in the case of fraud (not at issue here). The commission includes appeal tribunal decisions and commission decisions within the reasoning of this provision; nonetheless, no decision of any kind adjudicated the employe's ability to work, until the administrative law judge's April 21, 1999 decision. The employe therefore is not required, by operation of Wis. Admin. Code § DWD 128.01(1), to repay unemployment insurance he received for weeks 2 - 15 of 1999.

DECISION

The decision of the administrative law judge is affirmed in part and reversed in part. Accordingly, the employe is ineligible for unemployment insurance beginning in week 16 of 1999, and until he is again able to work and available for suitable work within the meaning of Wis. Admin. Code § DWD 128.01 (2). There is no overpayment.

Dated and mailed October 22, 1999
jonesmi.umd : 105 : 3 BR 325

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


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