DATED AND FILED
NOTICE
December 4, 1997
Marilyn L. Graves
Clerk, Court of Appeals
of Wisconsin
No. 97-0731
DISTRICT IV
Goodyear Tire & Rubber Co.,
Plaintiff-Respondent,
v.
Labor & Industry Review Commission,
Defendant-Appellant,
Wayne A. Henderson,
Defendant.
APPEAL from an order of the circuit court for Dane County: MORIA
KRUEGER, Judge. Reversed.
Before Vergeront, Roggensack and Deininger, JJ.
ROGGENSACK, J. The Labor and Industry Review
Commission
(LIRC) appeals a circuit court order made pursuant to §§ 108.09(7) and
102.25,
Stats., which set aside and remanded a decision LIRC had made granting
unemployment compensation benefits to Wayne A. Henderson. However, because
there is substantial and credible evidence in the record to support LIRC's finding that
Henderson was able and available to work at least 15% of the suitable jobs in his
labor market area, we reverse the order of the circuit court and reinstate LIRC's grant
of benefits to Henderson.
BACKGROUND
Wayne Henderson worked as a team leader and store manager for the
Goodyear Tire & Rubber Company for approximately six years. Prior to his
management experience, he had been an automobile salesman and a tire repairman.
He had a high school diploma, and had taken a few college business courses, but he
had no other specialized training or skills. In January of 1995, he injured his
shoulder, neck and back on the job, while breaking down steel equipment with a
sledgehammer. On April 14, 1995, he re-injured his back lifting tires. He tried to
return to work April 17, 1995, but was physically unable to perform his job duties.
Shortly thereafter, Goodyear suspended, and then terminated Henderson.(1)
Henderson filed a claim for unemployment compensation benefits on
May 8, 1995. At that time, his doctor had released him to do light duty work, but
advised that he was unable to perform any repetitive pushing, pulling, bending,
twisting or lifting. He further restricted him to lifting or carrying no more than ten
pounds. On June 2, 1995, DILHR made an initial determination that Henderson was
ineligible for unemployment compensation because he was unable to perform at least
15% of the suitable jobs in his labor market as of week nineteen in 1995. Henderson
appealed, and a hearing was held before an administrative law judge (ALJ). On
August 22, 1995, the ALJ reversed the initial determination and granted benefits.
This time, Goodyear appealed. On November 8, 1995, the commission remanded the
matter for additional testimony regarding Henderson's ability to perform suitable
jobs. On February 16, 1996, the commission reversed the tribunal's decision, thereby
denying benefits. However, on May 3, 1996, after reconsideration, the commission
issued an amended decision reversing itself and granting benefits, because it had
made a mathematical error in its initial determination. Goodyear petitioned for
judicial review. The circuit court set aside the commission's decision and remanded
the matter to LIRC because it concluded that LIRC's decision depended on a factual
finding regarding the percentage of suitable jobs in the Milwaukee area job market
that was not adequately supported in the record. Determination of the correct
percentage of jobs suitable for Henderson is the major issue on appeal.
A labor market analyst, Ronald Ramlow, testified at two hearings. It
was his opinion that there were roughly 700,000 jobs in the Milwaukee area job
market. These jobs included more than 15,000 individual job titles, but could be
classified into ten to twelve general categories of jobs. Ramlow stated that Henderson
was qualified to work in five of these general categories: sales; service; clerical;
factory and professional/technical/managerial.(2) He explained that sales jobs
comprised 9% of the entire Milwaukee area labor market, service jobs comprised 18%
of the market, clerical jobs comprised 17% of the market, factory jobs comprised 16%
of the market, and professional/technical/managerial jobs comprised 26% of the
market. He did not break down the remaining 14% of the jobs into categories of jobs
which Henderson, by implication, was not qualified to perform.
Henderson was physically able to perform only sedentary jobs because
they required lifting no more than ten pounds and no repetitive bending, etc. In this
regard, Ramlow testified that 9% of the sales jobs were sedentary, as were 2% of the
service jobs, 63% of the clerical jobs, 3% of the factory jobs, and 41% of the
professional/technical/managerial jobs. Ramlow also noted that, although 41% of the
professional/technical/managerial jobs were sedentary, Henderson would be able to
perform only 5% of all of the professional/ technical/managerial jobs because the
remainder required a college degree, which Henderson did not have.
Based on this record, LIRC found that Henderson was suspended in
week fifteen of 1995 because he was unable to do suitable work for the employer.
It also found that 86% of the jobs in the general Milwaukee area labor market were
suitable for Henderson, and further concluded that as of week nineteen of 1995, he
was able and available to work 15.88% of those jobs. Goodyear maintains on appeal
that the 86% figure and the 15.88% figure are not supported by credible evidence in
the record; first, because 14% of jobs in the market were unaccounted for, and
second, because Ramlow failed to testify as to what percentage of each suitable
category was actually comprised of suitable jobs.
DISCUSSION
Standard of Review.
This court reviews the administrative agency's decision rather than that
of the circuit court. Stafford Trucking, Inc. v.
DILHR, 102 Wis.2d 256, 260, 306
N.W.2d 79, 82 (Ct. App. 1981). LIRC's factual findings must be upheld on review
if there is any credible and substantial evidence in the record upon which reasonable
persons could rely to make the same findings. See
Princess House, Inc. v. DILHR,
111 Wis.2d 46, 54-55, 330 N.W.2d 169, 173-74 (1983); § 227.57(6), Stats. A
reviewing court may not substitute its judgment for that of the agency as to the weight
or credibility of the evidence on any finding of fact. See
Advance Die Casting Co.
v. LIRC, 154 Wis.2d 239, 249, 453 N.W.2d 487, 491 (1989);
§ 227.57(6). Rather,
it must examine the record for credible and substantial evidence which supports the
agency's determination.
Suitable Work.
The unemployment compensation statutes limit eligibility for benefits
to those formerly employed who are both able to work and available for work.
Section 108.04(1)(b), Stats.(3) The standard
for determining when an employee is
able and available for work is further refined in the Wisconsin Administrative Code:
(1) A claimant is not considered to be able to work or
available for work in any given week if:
(b) The claimant's physical condition or personal
circumstances over which the claimant has no control limit the
claimant to less than 15% of the opportunities for suitable
work, including all such jobs whether vacant or filled, in the
claimant's labor market area.
Wis. Adm. Code § ILHR 128.01(2)(b).(4) Suitable work is administratively defined as
"work that is reasonable considering the claimant's training, experience, and duration
of unemployment as well as the availability of jobs in the labor market." Wis. Adm.
Code § ILHR 100.02(1)(q).(5)
The labor market area is administratively defined as "a
geographical area in which there are jobs deemed to be suitable work for the claimant
and which encompasses the geographical area in which workers with similar
occupational skills customarily travel to obtain or perform suitable work." Wis. Adm.
Code § ILHR 100.02(1)(i).(6)
The parties agree that Henderson's labor market area was southeastern
Wisconsin (including Milwaukee, Waukesha, Ozaukee and Washington counties),
and that he was physically restricted to sedentary jobs during the claimed benefit
weeks in question. They also agree that the determination of the percentage of
suitable work which he was able to perform requires application of a mathematical
formula, in which the percentage of each suitable type of job which Henderson was
physically able to perform would be multiplied by the percentage of that type of job
in the entire labor market area, and the resulting percentage figures would be summed
and then divided by the ratio of suitable work to all work in the labor market area.
They disagree whether Henderson's physical restrictions permitted him to perform
at least 15% of the opportunities for suitable work in the Milwakuee area, because
they disagree about whether LIRC used the correct suitable work ratio for its
calculation. In other words, Goodyear would have this court set aside the finding that
Henderson was qualified for only 86% of the jobs in his labor market area.
LIRC calculated the percentage of suitable work which Henderson was
able and available to perform as follows:
% of
category
W.H. could
perform % of category
in labor
market area % of all labor
market area
jobs W.H.
could perform % of suitable
jobs which
W.H. could
perform 9% x 9% = 0.81% Service
2% x 18% = 0.36% Clerical
63% x 17% = 10.71% Factory
3% x 16% = 0.48% Prof/Tech/Mgmt
5% x 26% = 1.3%
86% 13.66% 13.66% ÷ 86%
15.88%
Goodyear challenges this calculation on the grounds that it fails to include other types
of jobs which may have been suitable for Henderson.
Goodyear first points to the following exchange in the record:
Q: So your conclusion today that someone with a high
[school] diploma and years of business, a couple of years
of training, and but with his sedentary restrictions, is only
eligible for 3 percent(7) of the jobs in the
marketplace?
A: Those categories that we were talking about the
professional, technical and managerial, sales, clerical,
factory, et cetera--
Q: How about the entire marketplace, is there other jobs that
we didn't get into? How about store clerk, what,
whatever else we didn't--
A: Well, that's part of sales.
Q: Okay, are there other (one word unintelligible)--
A: You know, that would be some of the other ones,
miscellaneous, which is like truck driving or laborer.
Goodyear claims that this exchange shows that 14% of the jobs in the relevant labor
market area were not included in one of the five categories established by Ramlow,
and therefore, LIRC's calculation is in error. However, aside from the fact that
Ramlow never said Henderson was suited by training and education to perform any
of these other jobs, Goodyear's argument also ignores Ramlow's earlier testimony:
Q: Do you recall Mr. Henderson's testimony identifying the
types of work he has performed and his educational and
training background?
A: Yes.
Q: Using that information could you identify the types of
work he's qualified to perform.
A: Sales, management, service when he said he was
mounting tires, whatever, back an x number of years ago
and I think he could do clerical work also, filing, a
minimum of clerical duties so I think those four, sales,
management, service and clerical. Well he could do
factory too, you could add that too.
Thus, taken in conjunction with Ramlow's testimony that there were ten to twelve
different categories of jobs available in the Milwaukee area job market, a reasonable
person could rely on this evidence, as did LIRC, for the conclusion that the five
categories named by Ramlow were the only categories containing work
which it
would be reasonable to expect Henderson to perform given his training and
experience.
Goodyear nonetheless maintains that even if Henderson were qualified
only for certain categories in general, he might be qualified to perform some
miscellaneous jobs within categories that were not in the named group of five. It
asserts the case should be remanded so that Ramlow can testify with more specificity.
We disagree. It would be unreasonable to require a witness to give an itemization of
the suitability of 15,000 individual jobs.(8)
Breaking the job market into ten to twelve
different categories of jobs is sufficient for the purpose of identifying types of jobs
which are suitable for a person with a known level of education and training. Further,
Goodyear had ample opportunity to cross-examine Ramlow at the two hearings held
before the ALJ. If it did not do so to the extent it now believes advantageous, that is
not a basis upon which we can overturn LIRC's factual findings. Therefore, we
conclude there is substantial and credible evidence in the record to support LIRC's
findings, and therefore, we must reinstate its award of benefits.
CONCLUSION
Evidence of an unemployment compensation claimant's ability to
perform suitable jobs in his or her job market may be based on the suitability of
general job categories rather than a breakdown of suitability for individual jobs, and
it may be inferred from testimony that certain categories are suitable, while other
categories are not. All of the factual findings necessary to LIRC's calculation that
Henderson was able and available to perform 15.88% of the jobs in the labor market
area have support in the record. Therefore, we are compelled to reverse the order of
the circuit court and reinstate LIRC's determination that Henderson was eligible for
unemployment compensation beginning in week nineteen of 1995.
By the Court.--Order reversed.
Not recommended for publication in the official reports.
1 Goodyear apparently contested, in a separate proceeding,
whether Henderson's termination
was for cause or the result of a workplace injury, but that issue is not before us on this
appeal.
2 The circuit court took Ramlow's later testimony that there
were other categories which
might include truck driver or laborer to mean that there might be some other suitable
jobs available,
in apparent conflict with his testimony that there were only five categories of
jobs Henderson was
qualified to perform.
3 Section 108.04(1)(b), Stats., provides in relevant part:
An employe is ineligible for benefits:
1. While the employe is unable to work, or unavailable for
work, if his or her employment with an employer was
suspended by the employe or by the employer or was
terminated by the employer because the employe was
unable to do, or unavailable for, suitable work
otherwise available with the employer.
4 This section has been renumbered to DWD 128.01(2)(b).
5 This section has been renumbered DWD 100.02(61).
6 This section has been renumbered DWD 100.02(35).
7 This 3% figure, which directly contradicts the expert's 16%
figure from the first hearing,
was the expert's "guess" at the remand hearing, made without the benefit of a calculator.
LIRC was
entitled to give more weight to the original figure arrived at through a demonstrated
application of raw
data.
8 Of course, we do not mean to suggest that a witness could
not testify with more specificity
if he or she had more specific data at his disposal.
STATE OF WISCONSIN
IN COURT OF APPEALS
Category
suitable for
W.H.
Sales