Help with Arkansas determination appeal.

[WillienAR]

What is the name of your state (only U.S. law)? Arkansas.

Hello, I am asking for help with a determination appeal by phone for next week. I have copies of the determination and will post anything off them, no addresses etc. of course,just ask. At little background-- David and Laura are the owners/employers, Kim is the cook/kitchen manager. I was hired in 8/2009 due to Kim going on maternity leave sometime in October/November and they needed a cook until she came back from having the baby. After she came back, I was to share cooking duties with her. I did some non-hourly(contract?) work for the restaurant in December 2009, which I still have to be paid in full. We had insurance through ARHealthNetworks but I am no longer on the plan due to my hours being reduced

Finding of facts Due to personal disabling injury you were not able to perform suitable work. You are ineligible for benefits for the time period shown below and continuing until this condition no longer exists. Please advise your DWS office when this condition no longer limits your availability for suitable work.​

LAW: ACA 11-10-507(3)(A)provides that an insured worker must be unemployed, physically and mentally able to perform suitable work, and available for such work. The law further specifies that the mere registration and reporting at a local employment office shall not be conclusive evidence of ability to work, availability for work or willingness to accept work unless the claimant is doing those things which a reasonably prudent individual would be expected to do to secure work. In determining suitable work under this section and for refusing to apply for or accept suitable work under 11-10-515, part time work shall be considered suitable work unless the majority of work in the period used to determine monetary eligibility is from full time work.​

In early January of this year, I slipped on ice and fell, re-aggravating an old injury(non-work related)to my shoulder. I didn't seek medical attention. I called my employer and told him I couldn't make it in and he was fine with that. He called and left a phone message later that day saying he had my schedule covered for the rest of the week. David and I kept in touch and I ended up taking about 2 1/2 weeks off to mend. I did go in during that time and worked a partial shift but wasn't fully healed. David and I met at the restaurant at the last week of January and discussed my coming back to work. At that meeting he said that he was thinking of letting me go right then and there. I assured him I was back to 100% and wanted to keep my job. I was put back on the schedule starting the first week of February.

I went in on 2/2 and at 1:00 was told by Kim that it was slow and to go ahead and leave. I went out to where David and Laura sat and told them Kim was sending me home. They said okay, I signed out and left. Later that day I got another phone message from David stating that he didn't want me there the next day and not to come back to work until I was ready. I don't know if Kim told him I wanted to go or if David is trying to pull a fast one here but me leaving work was NOT my idea nor were there any issues with my shoulder that day or any since. I wasn't placed on the schedule for the week 2/8 so I applied for part-time unemployment on 2/10. The week of 2/15, I went to the restaurant to give Laura the bill for the non-hourly work done in December and she asked me how I was doing. I told her I was fine and was ready work for them anytime they wanted. I still haven't been back.

I did some contract work in the first couple of weeks in March for a company that re-modularized sections in a local hardware store. I put those hours down on my weekly claims so I believe I have advised DWS that I am able and available for work.

I know I didn't do a very good job of explaining this on the determination. I am asking if there is a reasonable chance to reversing the decision? What do I need to expect during the hearing? Is there any information I need to get/subpoenaed to help? Please ask away if you have any questions and thanks for any help you can give.

 

[commentator]

Did they (unemployment office) at any time ask you to get a physician's statement that since you left work due to health reasons, you are now fully released to return to work with no restrictions?

If that employer let you back on the property after your telling him you were unable to work due to an old shoulder injury without a doctor's statement saying you were fully released to return to work, he made a big mistake. Because you could very well have claimed that working on the job made your injury worse, and filed against his worker's comp.

It sounds as though what he did was sort of gradually phase you out anyhow, just not give you any more hours to work. Telling them you're able to come back to work, without a medical statement proving that is not the standard way to present yourself when you've been out for health or injury reasons to begin with.

And when you filed for partial unemployment, and later, we assume, reported the work for the other job..(and haven't you eventually had to change to a regular claim instead of a partial? It's usually about a two month limit on how long you can file partials before converting to a regular job searching non job attached claim. ) But anyhow, when you filed for regular unemployment, did you put any limitations on your job availability when filling out the paperwork? Did you say you could not do heavy lifting, or that you had to work certain hours, or light duty only? Okay have you been offered any further work, any part time job which you refused through the unemployment office or your old employer? Did you tell them you wouldn't be able to come back part time? There seem to be some issues here that we're not hearing.

The way to have this disqualification, which has nothing to do with the employer or your separation issue, removed is to present the unemployment office one of their statements, usually they have these pre-printed up for you to ask a doctor to sign, saying you are fully released for work with no restrictions. And be able to accept anything they offer, even part time jobs.

 

[WillienAR]

Thanks for replying commentator. The unemployment office nor my employer didn't ask for a release to go back to work. I see you are coming from about having one now that you mention it.

When I filed my claim, I wrote that I was no longer on the schedule and still thought I was an employee. I'm not aware to switch to a regular claim. I was told to have 2 job contacts minimum a week. On my weekly claims I mark still employed and lack of work as my status. I haven't any limitations or restrictions on work I can do. I haven't turned down any work from potential employers or David and Laura.

I was unaware there is a release form my doctor could sign. If that is all it takes, and I get that to them before the appeal next week, will that remove the disqualification?

 

[commentator]

Yes, best thing you can do is present the unemployment system with a statement from a doctor, saying something like, 'I treated xxxxxx xxxxxx for this condition (something like injured shoulder due to fall on ice) on xxxxx.

As of this date...... she is fully released to return to her regular work with no restrictions, limitations or conditions.

The doctor's office may charge you for this statement, some do. I understand that not having health care insurance any more, this makes it rough, makes you want to do without medical treatment when you can. But when it says:

"You are ineligible for benefits for the time period shown below and continuing until this condition no longer exists. Please advise your DWS office when this condition no longer limits your availability for suitable work" it definitely means that at some point, you needed to have submitted proof of your fitness to return to work after this injury." And you can't just tell them that in your opinion you're ready to go back to work, it has to be a medical statement.

Make several copies of this little tidbit before you turn your only one in to the unemployment office, keep one for yourself, and be sure you inform your old workplace that you have one and that you'd be tickled to come back to work. Because when your employer tells you: ".... he didn't want me there the next day and not to come back to work until I was ready," they were asking for a medical release, too. If you'd brought him a release and he didn't have any more work for you at that point, you'd have been good to go for unemployment purposes at that time. Or even part time work, and drawing some of your unemployment weekly benefit.

What they'll probably do when you give the medical statement is open your claim from this point on, in other words, you won't be back paid for these last few months, but you'll be able to begin from this point forward looking for jobs and receiving benefits.

 

[WillienAR]

I called my local office and asked what they had my injury listed as and what so they need as to proof that I'm able and available for work. They said to come down and make a statement and they would get it in the system. I'll ask when I go there if a release from the doctor is necessary. Thank you again for your wisdom commentator. It helps to have another set of eyes.