STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)


MARY A BACHMANN, Employee

UW MADISON, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00005802MD


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 the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own, except that it makes the following modifications:

1. The following is added to the end of paragraph 4 of the appeal tribunal's FINDINGS OF FACT AND CONCLUSIONS OF LAW:

"There is a grace period for individuals in the employee's circumstances, however, found in Wis. Admin. Code § DWD 129.02:

DWD 128.02 Availability for work; temporary grace periods for claimants with uncontrollable restrictions.
(1) The department shall consider a claimant to have satisfied the requirements of this chapter for certain designated grace periods enumerated under sub. (2) if:
(a) 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, as specified under s. DWD 128.01(2)(b);
(b) The claimant is available for work under the same conditions which applied to the claimant's most recent period of employment; and
(c) The claimant's most recent separation from work was due to a layoff.
(2) (a) If at least two-thirds of all of the wages paid in the 26-week period immediately preceding the week in which the claimant initiates the benefit claim were earned under substantially the same conditions as applied to his or her most recent employment, the department shall grant the claimant a grace period of 6 weeks beginning with the week after the week in which the claimant's layoff occurred.
(b) If at least one-third but less than two-thirds of all of the wages paid in the 26-week period immediately preceding the week in which the claimant initiates the benefit claim were earned under substantially the same conditions as applied to his or her most recent employment, the department shall grant the claimant a grace period of 3 weeks beginning with the week after the week in which the claimant's layoff occurred.

The employee meets the above conditions. First, she had a stroke and her resulting disability must be considered something she has no control over. That disability limits her to less than 15 percent of the opportunities for suitable work. Second, the employee's circumstances have been in place for sometime. It thus is the case that she now is available for work under the same conditions which applied to her work for the university. Finally, the employee's separation was not due to inability to perform the work, but rather was due to a layoff. For these reasons, it is found that, in weeks 41 through 46 of 2000, the employee met the ability to work requirements of Wis. Stat. § 108.04(2)(a) and Wis. Admin. Code § DWD 128.01(2)."

2. In line 1 of paragraph 5 of the appeal tribunal's FINDINGS OF FACT AND CONCLUSIONS OF LAW, "week 41" is deleted and "week 47" is substituted therefor.

DECISION

The decision of the administrative law judge is affirmed in part and reversed in part. Accordingly, the employee is eligible for unemployment benefits in weeks 41 through 46 of 2000, if she is otherwise qualified. The employee is ineligible for
unemployment benefits beginning in week 47 of 2000, and until she again is able to work and available for suitable work.

Dated and mailed March 14, 2001
bachmma.umd : 105 : 1 AA 105

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The employee has appealed the decision in this case, but concedes that she is not able to work at this time. She argues that she may be able to work in the future. The employee's argument suggests that she misunderstands the nature of the unemployment insurance system. It is not a form of disability payment, such that someone who is unable to work at all is entitled to full unemployment insurance pay. Rather, a basic condition of any eligibility (except for the grace period addressed above) is that a claimant have at least a minimal current attachment to the labor market. In other words, a claimant must be able to perform at least 15 percent of the suitable work in his or her labor market area, in order to qualify for unemployment insurance. The employee concedes that she does not meet this 15 percent standard so, apart from the six-week grace period provided for by the administrative code, the employee must be deemed ineligible for benefits until her medical condition is such that she is able to perform at least 15 percent of the suitable work in her labor market area. The commission notes, finally, that this is an open-ended disqualification. That is, any time the employee believes her medical condition has sufficiently improved as to allow her to meet the 15 percent ability to work requirement, she is free to bring those changed medical circumstances to the attention of the Department of Workforce Development for possible redetermination of her eligibility for benefits.


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