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


PAUL JONES, Claimant

O J TRANSPORTATION, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99603714MW


On May 12, 1999, the Department of Workforce Development issued an initial determination which held that the claimant was ineligible for benefits because his uncontrollable restrictions limited his ability to work to less than 15 percent of the suitable jobs in his labor market. The claimant filed a timely request for hearing, and hearing was scheduled for June 23, 1999. The claimant failed to appear at the scheduled hearing so, on June 24, 1999, the department issued an appeal tribunal dismissal decision. The claimant filed a late petition for commission review and, by October 6, 1999 and February 3, 2000 orders, the commission remanded the case for hearing on all issues. Hearings were held on November 4, 1999 and April 20, 2000; the matter is again before the commission, and now is ready for disposition.

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

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Failure to appear at hearing.

The first issue is whether the claimant had good cause for having failed to appear at the scheduled June 23, 1999 hearing. The claimant did not appear at the hearing, because he never received notice for the hearing.

If an appellant fails to appear at a hearing, the request for hearing is to be dismissed unless the appellant had good cause for that failure. In this case, the claimant failed to appear at the scheduled hearing because he never received notice of the hearing. Non-receipt of notice for a hearing easily constitutes good cause for a resulting failure to appear, though. The commission therefore finds that the claimant had good cause, within the meaning of Wis. Stat. § 108.09(4), for his failure to have appeared at the scheduled June 23, 1999 hearing on his claim for unemployment insurance.

Claimant's ability to work.

The substantive issue in this case is whether the claimant was able to work, within the meaning of Wis. Stat. § 108.04(2)(a) and Wis. Admin. Code § DWD 128.01(2)(b), as of week 18 of 1999. The commission concludes that he was not, and so affirms the initial determination in this case.

The claimant suffers from cerebral palsy, which he has had since birth. The claimant is limited to a wheel chair; he can only perform sedentary work, and is to avoid stooping, climbing, crouching, crawling, and kneeling. He may not rely upon balancing; nor may he extend his hands and arms. Finally, he is limited to working 17 hours per week or less. Based upon these medical restrictions, the claimant is able to perform less than 1 percent of the opportunities for suitable work in his labor market.

A general eligibility requirement for unemployment insurance is that claimants be able to perform a certain percentage of suitable work in their labor market, notwithstanding any medical restrictions the claimant may have. Pursuant to Wis. Admin. Code § DWD 128.01(2)(b), a claimant must be able to perform at least 15 percent of the opportunities for suitable work in his labor market, in order to be eligible for unemployment insurance. In this case, the claimant's medical restrictions render him able to perform far less than the requisite 15 percent of opportunities for suitable work in his labor market. The commission therefore finds that, as of week 18 of 1999, the claimant is not able to work or available for suitable work, within the meaning of Wis. Stat. § 108.04(2)(a) and Wis. Admin. Code § DWD 129.01(2).

DECISION

The appeal tribunal decision in this case is reversed. The initial determination is affirmed. Accordingly, the claimant is ineligible for unemployment insurance beginning in week 18 of 1999 and continuing until such time as his medical restrictions do not render him unable to perform at least 15 percent of the opportunities for suitable work in his labor market.

Dated and mailed May 10, 2000
jonespa.urr : 105 : 1    AA 105    PC 712.1

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

NOTE: The commission has accepted the claimant's petition for commission review as having been late for a reason beyond his control. The claimant never received the June 24, 1999 appeal tribunal dismissal decision. Non-receipt of a decision, though, is a reason beyond a party's control for a resulting late appeal from that decision.


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