Wis.LIRC UC Decision: Williams - January 11, 2000 - VL 1023.10 - Health - "His work", unable to do; PC 713 Hearing, issues for decision - remand for consideration of "quit" issue which was presented but not addressed

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

DAVID S WILLIAMS, Employe

HPG LAUNDRY SYSTEMS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99604935MW

An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development held a hearing in this matter and subsequently issued an Appeal Tribunal Decision (ATD). A petition for review by the commission was timely filed.

In the ATD under review, the ALJ addressed only those issues that arose in weeks 24 and 43 of 1998, the calendar weeks ending, respectively, on June 13, 1998, and October 24, 1998.

It was undisputed that the employe suspended his employment with the employer in week 24 because an injury prevented him from doing his work, as confirmed by the opinion of his treating physician. It was also undisputed that the employer's workers compensation insurance carrier paid temporary total disability benefits to the employe for each week in the period from week 24 through week 36 of 1998 (the latter week was the calendar week ending on September 5, 1998).

Finally, as regards the issues addressed by the ATD under review, department records reflected, and it was undisputed, that the first week for which the employe claimed unemployment benefits after week 24 of 1998 was week 43 of 1998 (the calendar week ending on October 24, 1998).

The ATD under review held that the employe suspended his employment with the employer in week 24 because the employe was unable to do, or unavailable for, suitable work otherwise available from the employer, within the meaning of Wis. Stat. � 108.04(1)(b)1. The ATD further held that the employe was able to work and available for work on the general labor market when he claimed benefits in week 43 of 1998, and that he was therefore eligible for such benefits, if otherwise qualified.

Finally, the ALJ held that he did not have jurisdiction over a quit issue asserted by the employer and was not going to assume (take) such jurisdiction.

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, in part, with the decision of the ALJ. Specifically, the commission agrees with and affirms the findings and conclusions of the ALJ regarding the application of Wis. Stat. � 108.04(1)(b)1. to the "able and available" issues arising in weeks 24 and 43 of 1998.

The commission disagrees with the decision of the ALJ that he did not have jurisdiction over a voluntary termination or "quit" issue under Wis. Stat. � 108.04(7)(a). The employer asserted that such an issue arose in week 36 of 1998 (the calendar week ending on September 5, 1998), when the employe allegedly failed to return to work after his period of disability ended. This issue will be discussed further in the commission's memorandum opinion.

DECISION

The decision of the administrative law judge is affirmed in part and reversed in part. Accordingly, the employe is not disqualified by the "able and available" issues arising in week 24 and week 43 of 1998 under Wis. Stat. � 108.04(1)(b)1., and is eligible for benefits if he is otherwise qualified.

The commission, pursuant to its jurisdiction under Wis. Stat. � 108.09(6)(d), remands this matter to the department for investigation and determination as to a possible unaddressed "quit" issue arising in or around week 36 of 1998. Such investigation and determination should address the question of whether any quit issue raised in this case was timely raised, and whether repayment of any overpayment of benefits is waived.

Dated and mailed January 11, 2000
willida.2usd : 200 : 1 VL 1023.10 PC 713

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The procedural history of this case is somewhat convoluted. The employe worked about one year for the employer, a laundry. He allegedly strained his back on the job on or about June 2, 1998 (week 23). The last date on which he saw his own physician was September 9, 1998 (week 37), when his physician apparently indicated he could return to "modified" work, subject to restrictions limiting him to 50 pounds lifting, pushing and pulling. The employe apparently missed a follow- up appointment with Dr. Lincer on September 15, 1998.

The employer's WC insurance carrier paid weekly TTD payments to the employe through August 28, 1998 (week 35). They stopped paying at that point, apparently based on the opinion of another physician, Dr. Hussussian, who opined that the "end of healing" plateau had been reached as of August 2, 1998 (week 32).

An initial determination issued on December 4, 1998 held that the employe suspended his employment in U.I. week 23 of 1998 because he strained his back and was unable to do the work the employer had available for him. The determination further held that when the employe first claimed benefits, in week 43 of 1998, he was able and available for benefit purposes, based on the applicable general labor market conditions and the fact that his restriction was uncontrollable.

The employer timely appealed the determination allowing benefits and a hearing was scheduled for January 12, 1999. That hearing was assigned hearing number 8608405MW. The hearing notice for the January 12, 1999 hearing clearly listed separation issues, among others.

The employer-appellant appeared at the January 12, 1999 hearing, presented testimony on the merits and offered exhibits. The employe-respondent was late for the January 12 hearing. His testimony was not taken on that date. Instead, ALJ Glick told the employe, to file a "late arrival questionnaire." The hearing was then closed.

After ALJ Glick reviewed the employe's statements on the "late arrival questionnaire", a "rehearing" was scheduled for January 26. The notice issued for that hearing expressly limited it to the "failure to appear" issue. The employe appeared and testified. The employer also appeared.

After the January 26 rehearing, ALJ Glick issued an ATD on February 3, 1999 in which he held that the employe did not fail to appear at the January 12 hearing, within the meaning of Wis. Stat. � 108.09(4), and that a hearing on the merits should therefore be scheduled. However, the employer petitioned for commission review of the procedural decision.

On April 22, 1999, the commission issued its decision affirming the ATD on the "failure to appear" issue, and ordering that the rehearing on the merits be scheduled.

The rehearing on the merits, ordered in the commission's April 22, 1999 decision, was assigned hearing number Hearing No. 99604935MW and was ultimately held on August 2, 1999. The hearing was held before ALJ Gordon.

The employe did not appear at the August 2, 1999, rehearing on the merits. ALJ Gordon took testimony from the employer on the merits of the eligibility issues (this was the second time the employer had presented testimony on the merits, the first time having been on January 12, 1999, at the original hearing on the merits).

A labor market analyst (LMA) employed by the department also testified at the August 2, 1999 rehearing on the merits. The LMA opined that the employe was able and available to perform at least 20% of suitable jobs in his labor market area when he first claimed benefits (in week 43/98). The minimum for eligibility under the circumstances was 15%, pursuant to Wis. Stat. � 108.04(1)(b)1. and Wis. Admin. Code � DWD 128.01(2)(b).

Based on the record made at hearing held on August 2, 1999, ALJ Gordon issued the ATD now under review.

As discussed in the commission's above findings, ALJ Gordon found that the employe suspended his employment with the employer in week 24 of 1998 because the employe was unable to do, or unavailable for, suitable work otherwise available from the employer, within the meaning of Wis. Stat. � 108.04(1)(b)1. The ATD further held that the employe was able to work and available for work on the general labor market when he claimed benefits in week 43 of 1998, and that he was therefore eligible for such benefits, if otherwise qualified. Finally, ALJ Gordon held that he did not have jurisdiction over a quit issue asserted by the employer and was not going to assume (take) such jurisdiction.

In its petition, the employer argues that ALJ Gordon should have dealt with the quit issue. The commission has remanded the possible quit issue to the department for several reasons.

The hearing notice for the January 12, 1999 hearing that was designated as hearing number 98608405MW identified a possible quit issue. As discussed above, that hearing number came before the commission on a procedural issue (alleged failure of employe to appear). The synopsized record of the January 12, 1999 hearing has been examined; it discloses that the employer presented testimony and exhibits at that hearing addressing the possible quit issue.

At the hearing under review, the employer attempted to again address the quit issue and requested that the appeal tribunal resolve that eligibility issue. The record of hearing number 98608405MW was not incorporated into the record of the case now before the commission, nor have the merits addressed in that hearing been otherwise resolved.

The ALJ in the matter directly before the commission exercised his discretion as to the evidence to be taken and the issues to be addressed. The commission has exercised its discretion to remand the possible quit issue to the department for the reasons discussed above.

cc: Human Resource Systems
Curtis A Brzezinski

Betty Keller, Claims Representative
c/o Gates McDonald

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