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


PATRICK J BURR, Employe

INDUSTRIAL RECYCLERS OF WISCONSIN, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99000982WU


On February 18, 1999, the Department of Workforce Development issued an initial determination which held that the employe's employment was suspended because he was unable to perform suitable work otherwise available with the employer, but that the employe was able to perform at least 15 percent of the suitable jobs in his labor market (and so was eligible for unemployment insurance). The employer filed a timely request for hearing on the adverse initial determination, and hearing was held on March 22, 1999 in Wausau, Wisconsin before a department administrative law judge. On March 29, 1999, the administrative law judge issued an appeal tribunal decision reversing the initial determination. The employe timely petitioned for commission review of the adverse appeal tribunal decision and, by September 1, 1999 order, the commission remanded the matter for additional hearing. That hearing was held on November 18, 1999 in Madison, Wisconsin; the matter is again before the commission, and is ready for disposition.

Based on the applicable law and the records and other evidence in the case, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked during two years and nine months as a forklift operator for the employer, a materials recycling business. His last day of work was January 27, 1999. The issues to be decided are whether the suspension of employment by the employe or 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 benefits was initiated. The commission concludes that the employe was able to work and available for work, within the meaning of Wis. Stat. § 108.04(2)(a) and Wis. Admin. Code § DWD 128.01(2), and so reverses the appeal tribunal decision.

The employe was absent from work on January 28 and 29, 1999, providing notice to the employer that he had injured his back at home. When he reported to work on February 1, 1999 (week 6), he was advised by the employer that he would not be allowed to work until he provided medical evidence that he was able to perform his job duties. On February 2, 1999, he provided the employer with a report from his doctor containing restrictions that would not allow him to perform all of the duties of his job. At that point the employer suspended his employment.

If an employe's employment is suspended because the employe was unable to do, or unavailable for, suitable work otherwise available with the employer, the employe is ineligible for unemployment insurance if, at the same time, the employe is unable to work or unavailable for work. These concepts of availability for work and ability to work are quantified in Wis. Admin. Code § DWD 128.01(2). A claimant is not considered able to work, within the meaning of the unemployment insurance law, if the claimant's physical condition or personal circumstances over which the claimant has no control limit the claimant to less than 15 percent of the opportunities for suitable work in the claimant's labor market area. In the present case, the employe was restricted to light work, and was to avoid kneeling, crouching, stooping, and bending. His only other restriction was that he could only occasionally climb. Based upon these restrictions, the employe is able to perform approximately 30 percent of the suitable work in his labor market area. The employe thus meets the 15 percent minimum ability to work requirement of Wis. Admin. Code § DWD 128.01(2). The commission therefore finds that the employe's employment was suspended by the employer because the employe was unable to do suitable work otherwise available with the employer, but that the employe remained available for work and able to work, within the meaning of Wis. Stat. § § 108.04(1)(b)1 and 108.04(2)(a), and Wis. Admin. Code § DWD 128.01(2).

DECISION

The appeal tribunal decision is affirmed in part and reversed in part. Accordingly, the employe is eligible for unemployment insurance beginning in week 6 of 1999, if he is otherwise qualified.

Dated and mailed February 24, 2000
burrpa.urr : 105 : 6   AA 105  PC 715

/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 commission's reversal is based upon the medical and COED reports placed into evidence at the remand hearing, evidence which was not in the record from the first hearing in the case. The administrative law judge in finding the employe ineligible for unemployment insurance, reasoned that the employe had not appeared at hearing and that no competent evidence had therefore been obtained to establish that he was able to work in his labor market as of week 6 of 1999. The only evidence which would establish whether an employe was able to work, though, would be a COED report which listed the percentage of work the employe could perform notwithstanding his or her medical restrictions. In this case, the employer testified as to the employe's medical restrictions, thus leaving the COED report as the only missing evidence. The department prepares COED reports, though, so once the employe's medical restrictions were in evidence and were to be considered, it was incumbent upon the administrative law judge to have prepared a COED report which took into account those restrictions and determined the employe's resulting percentage ability to work.

Pamela I. Anderson, Commissioner (Dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. There are many unusual circumstances in this case. The employer was the only witness that the original hearing. The employe had called the employer on January 28, 1999 to tell the employer that his back had gone out and he could not work. He was also absent January 29 for the same reason. The employe returned to work February 1 but the employer sent him home because he did not have a medical release to return to work. On February 2, the employe brought in paper work for his doctor but the employer did not have any work for the employe within those restrictions. While the employer did testify about the medical restrictions of no bending, stooping, crawling, climbing and no lifting over 10 pounds, that evidence was hearsay and there was no guarantee of reliability to it because the employer had not brought the hearsay document from the doctor. The employer prepared paperwork for the employe `s doctor to fill out to grant him a leave under the Family Medical Leave Act. The employe refused to sign the paperwork because he would not be eligible for unemployment benefits if he signed it.

The administrative law judge denied benefits because the employer suspended his employment because unable to do, or unavailable for, suitable work otherwise available with the employer. The majority remanded the case because they believed that based on the employer's medical testimony that the administrative law judge should have gotten a COED report to see if the employe was able and available on the general labor market.

The remand asked that the employe's February 12,1999 UCB-474 (medical report) be placed in the record and that a COED report be prepared to address the effects of the employe's medical restrictions on his ability to work. The 474 submitted at the hearing was not signed by doctor. The employe also placed other medical reports in the record. The reports had a phase can drive a forklift 8 hours per day hand printed on four the reports. The information about the forklift does not appear to be filled in by the same person who wrote pages 6 and 10. We have no information about the author of the 474 because it is unsigned.

For all these reasons, I would affirm the original decision of the administrative law judge.


____________________________________
Pamela I. Anderson, Commissioner


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