Wisconsin Labor and Industry Review Commission --
Summary of Wisconsin Court Decision relating to Unemployment Insurance

Subject: Goodyear Tire & Rubber Co. v. LIRC and Wayne A. Henderson (Hrg. No. 95603885MW), Case 97-0731,Wis. Court of Appeals, Dist. IV, December 4, 1997 (unpublished).

Please note that Wis. Stat. 809.23(3) provides that an unpublished decision of the Court of Appeals is of no precedential value and for that reason may not be cited in any court in this state as precedent or authority. Summaries of unpublished Court of Appeals decisions are included in this collection as an informational service only, and their use contrary to 809.23(3) is not encouraged.

Digest Codes: AA 240

Claimant was not available for some work because of uncontrollable physical restrictions. The labor market analyst testified that the types of work suitable for the claimant were sales (9% of the jobs in the Milwaukee labor market), management (26% of the jobs), service (18% of the jobs), clerical (17% of the jobs) and factory (16% of the jobs). Thus, 86% of the jobs in the labor market were suitable. Claimant was physically able to do 9% of the sales jobs, 5% of the management jobs, 2% of the service jobs, 63% of the clerical jobs, and 3% of the factory jobs. LIRC calculated that claimant was available for (9% of 9%) + (5% of 26%) + (2% of 18%) + (63% of 17%) + 3% of 16%) = 13.66% of all jobs in the labor market. However, since the issue was whether claimant was available for at least 15% of the suitable work, and the work suitable for claimant constituted only 86% of all work in the labor market, LIRC divided 13.66% by 86%, and concluded that claimant was available for 15.88% of the suitable work in his labor market, and was therefore eligible.

On appeal to the circuit court, the employer argued that the labor market analyst had opined that claimant was only available for 3% of the suitable work. The employer also argued that there was other suitable work in addition to the 86% relied on by LIRC.

The circuit court set aside and remanded. While it held that the 3% figure cited by the employer was an obvious mathematical error, it accepted the employer’s argument that testimony by the labor market analyst suggested that there might be jobs that were suitable within the "other" or "miscellaneous" categories outside of the categories he had identified as suitable. This would change the divisor of 86% which LIRC relied on to arrive at the 15.88% figure.

Held: Court of appeals reversed the circuit court and reinstated LIRC’s decision. It was reasonable for LIRC to find that the 5 categories identified by the labor market expert were the only types of work suitable for the employe. Furthermore, rejecting the argument that there might have been individual suitable jobs within the "other" or "miscellaneous" categories, the court of appeals held that "(i)t would be unreasonable to require a witness to give an itemization of the suitability of 15,000 individual jobs. Breaking the job market down into ten to twelve different categories of jobs is sufficient for purposes of identifying types of jobs which are suitable for a person with a known level of education and training." (The court noted that it did not mean to suggest that witnesses could not testify with more specificity if they had more specific data at their disposal.)

Please note that this is a summary prepared by staff of the commission, not a verbatim reproduction of the court decision.

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