P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)


Hearing No. 11605816MW

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 it has reviewed the evidence submitted to the ALJ. Based on its review, the commission makes the following:


The claimant worked for approximately one year as a customer service representative for her last employer, a telecommunications business. Her last day of work was on or about March 5, 2009 (week 10). The claimant initiated an initial claim for unemployment benefits on March 6, 2009 (week 10), reporting that she was discharged by her last employer. The claimant filed weekly claim certifications thereafter and received benefits.

In or around 2006, the claimant was diagnosed with bi-polar disorder and social phobia disorder. She worked as a phlebotomist for a plasma donation business from August of 2007 through August of 2008. Despite her mental health condition, the claimant has engaged in substantial gainful employment.

After the claimant's discharge in March of 2009, she received formal treatment for her mental health disorders which included prescription medication. The claimant subsequently stopped taking the medication due to the adverse side effects. She had never received any restrictions from a medical or mental health provider on her ability to perform work.

On March 30, 2009 (week 14), the claimant applied for Social Security Disability Insurance (SSDI) benefits. She indicated on the first page of her application that she "became unable to work due to [her] disabling condition on March 6, 2009." She further stated: "I am still disabled." The claimant clarified on page two of her application: "I have never been told by any doctor that I could not work. I am not able to work not due to any disabling condition but because of the side effect the medications cause if and when I take them." Approximately eight months later, the claimant's application was approved and she began receiving SSDI benefits. The claimant did not inform the department that she was awarded SSDI benefits despite continuing to file her weekly claim certifications and receiving unemployment benefits. The claimant was not aware that she was required to notify the department of her SSDI benefits.

The claimant has participated in the "Ticket to Work" program through the Social Security Administration. The program permits SSDI recipients to test their ability to work while continuing to receive SSDI benefits for a limited period of time.

The issue to be resolved is whether the claimant was able to work and available for work as of week 11 of 2009.

Effective October 10, 2010, the legislature amended Wis. Admin. Code § DWD 128.01(3)(a) to read as follows:

Able to work means that the claimant maintains an attachment to the labor market and has the physical and psychological ability to engage in some substantial gainful employment in suitable work. During any week, a claimant is not able to work if the claimant is unable to perform suitable work due to a physical or psychological condition. In determining whether the claimant is attached to the labor market and able to perform suitable work, the department shall consider all factors relevant to the circumstances of the case, which may include the following:
1. The claimant's usual or customary occupation.
2. The nature of the restrictions caused by the claimant's physical or psychological condition.
3. Whether the claimant is qualified to perform other work within the claimant's restrictions considering the claimant's education, training, and experience.
4. Occupational information and employment conditions data and reports available to the department showing whether and to what extent the claimant is able, within his or her restrictions, to perform suitable work in his or her labor market area.

The underlined language was expressly chosen to mirror the "disability" definition contained in the Social Security Act. 42 U.S.C. § 416. A determination regarding a claimant's ability to work and availability for work will depend upon the facts of each case. Applying the factors set forth above to the particular facts of the present case, the claimant remained able to work and available for work within the meaning of the unemployment insurance law despite applying for, and receiving, SSDI benefits. The record supports a finding that the claimant was able to perform "some substantial gainful employment" despite her mental health condition. (Emphasis added). There is no indication in the record to suggest that the claimant would not have continued working for her last employer had she not been discharged. The claimant testified that she was searching for work and participating in the work incentive program. Moreover, she has never received any restrictions on her ability to work or availability for work from a medical or mental health provider.

The commission therefore finds that, as of week 11 of 2009, the claimant was able to work and available for work, within the meaning of Wis. Stat. § 108.04(2)(a) and Wis. Admin. Code ch. DWD 128.


The decision of the administrative law judge is reversed. Accordingly, the claimant is eligible for benefits as of week 11 of 2009, if otherwise qualified. There is no overpayment of unemployment benefits.(1)

Dated and Mailed January 11, 2012


/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

perkitu . urr : 102 : 5

NOTE: The commission consulted with the ALJ prior to reversing the appeal tribunal decision. The ALJ admitted that this case was a "close one" and did not doubt the credibility of the claimant with regard to her confusion about filing for unemployment benefits while receiving SSDI benefits. The ALJ focused on the companion concealment case and did not specifically cite any credibility or demeanor impressions with regard to the claimant's ability or availability for work. For the reasons set forth above, the commission reverses the appeal tribunal decision.



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uploaded 2012/04/27


(1)( Back ) The commission instructs the claimant to report wages earned as required by the department. The claimant should immediately contact a claims specialist for clarification, if necessary. The commission further notes that the federally administered work incentive program is governed by specific rules which provide for a limited period during which claimants may work and receive benefits. (