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


Subject: G. G. Barnett Transport Inc. v. Labor and Industry Review Commission and Shelly L. Culver, Case 11-CV-495 (Wis. Cir. Ct., Dodge Co., November 9, 2011)

Digest Codes: AA 105

Claimant, an over-the-road truck driver, lost vision in one of her eyes and could no longer drive in interstate commerce. Although the employer made some attempts to find a suitable alternative position for her, none was found, and her employment ended. She then applied for, and was granted, unemployment benefits. LIRC’s decision, upholding her eligibility for benefits, found that her separation from employment was a termination by the employer, because the employee was unable to perform suitable work otherwise available with the employer, within the scope of Wis. Stat. § 108.04(1)(b)1., and that the employee was able and available for work on the general labor market. The employer appealed, arguing that the separation was not a termination by the employer, and that LIRC misinterpreted § 108.04(1)(b)1. by concluding that it allowed eligibility if individuals were able and available to work on the general labor market.

Held: LIRC’s decision is AFFIRMED.

Plaintiff emphasizes that it did not intentionally terminate Ms. Culver’s employment. The Commission’s decision, however, found that irrelevant, noting that, “when an employer no longer has work available for an employee who desires continued employment, a severance of the employment relationship in the form of a layoff occurs.” The Court believes this finding of fact is reasonable and supported by substantial evidence.

The more significant issue, is the interpretation of Sec. 108.04(l)(b)l, Wis. Stats. It states that ineligibility for benefits continues “while the employee is unable to work or unavailable for work.” This case revolves around the meaning of this clause. Specifically, does eligibility for benefits commence once the employee (Ms. Culver) is able/available to “perform suitable work otherwise available with the employee’s employer”? Or does it commence once the employee is able or available to perform any work in the general labor market?

LIRC favors the latter interpretation. Its decision found that Ms. Culver was “able to work” or “available to work” because a labor market report found her able and available for approximately 75 percent of the suitable jobs in her labor market. This follows the general definitions of “able to work” and “available for work” set forth in Wis. Admin. Code sec. DWD 128.01. These definitions refer to the general labor market, not work available with a particular employer. And DWD 128.01 (1) explicitly states that it applies to sec. 108.04(l)(b), Stats.

LIRC’s interpretation of sec. l08.04(l)(b), Stats., is entitled to “great weight” deference. That interpretation has also been approved by appellate courts in Wisconsin. Referring to sec. 108.04(l)(b), Stats., the Wisconsin Court of Appeals has stated, “This subsection does not disqualify an employee who is physically unable to do his or her specific job unless the employee is also physically unable to do other work or is substantially unavailable for other work.” Rhinelander Paper Co. v. Department of Industry, Labor & Human Relations, 120 Wis. 2d 162, l6465, 352 N.W2d 679 (Ct. App. 1984); see, also, Esparza v. Department of lndustry, Labor & Human Relations, 132 Wis. 2d 402, 407, 393 N.W.2d 98 (Ct. App. 1986).

Therefore, the decision of the LIRC in this case is hereby AFFIRMED.


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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