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


MARK S DEC, Employe

T J PRINTING INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98607798MW


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 about 3.5 years as a bindery worker for the employer, a printing business. His last day of work was January 9, 1998 (week 2). Department records indicate that he filed his initial claim for unemployment insurance on November 5, 1998 (week 45).

The issues which must be decided are whether the suspension or termination 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 with the employer, and if so, whether the employe was able to work and available for work in the labor market at the time his claim for unemployment benefits was initiated.

The employe suffered a back injury on January 9, 1998, which left him with a 30 pound lifting restriction. The employe's position with the employer required him to periodically lift stacks of paper and boxes weighing more than 30 pounds. The employe was unable to do his job without modifications. The employer was unwilling to change the employe's job description, and thus, the employer had no work available for the employe to perform. Under the circumstances, the employe's employment was terminated by the employer because the employe was unable to do suitable work available with the employer.

The Wisconsin statutes provide that a claimant is not eligible for benefits unless able to work and available for work. The Wisconsin Administrative Code implements the statutes and provides that a claimant will not be considered able to work and available for work if he, without good cause, restricts himself to less than 50 percent of the full-time opportunities for suitable work in his labor market, or if his physical condition or uncontrollable circumstances limit him to less than 15 percent of the opportunities for suitable work in his labor market.

The employe's restrictions were based on his medical condition. They are, therefore, considered uncontrollable restrictions. Thus, to be eligible for benefits the employe must establish that he is able to perform at least 15 percent of the opportunities for suitable work in his labor market.

The employe can only occasionally stoop, climb, crouch, crawl, reach and kneel. He can perform handling and fingering tasks frequently. He is restricted to medium work, as he can lift no more than 30 pounds and is limited to two thirds normal reaching ability. The labor market analyst determined that with these restrictions, the employe is able to perform at least 65 percent of suitable work in his labor market.

The commission therefore finds that in week 2 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 week 45 of 1998, 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 benefits beginning in week 45 of 1998, if he is otherwise qualified.

Dated and mailed January 13, 2000
decma.urr : 145 : 1   AA 105  AA 120

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The commission's reversal of the appeal tribunal decision is not based on a different impression of witness credibility and demeanor but is based on labor market information regarding the employe's unique physicals restrictions. This information was not before the ALJ when she made her decision.

cc: ATTORNEY MICHAEL B KULKOSKI
OLSON KULKOSKI GALLOWAY & VESELY SC


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