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


BRENDA K FRICK, Employe

FISKARS INC, Employer

UNEMPLOYMENT COMPENSATION DECISION
Hearing No. 97000110BO


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 the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked about two years as an assembler for the employer, a manufacturing facility. Her last day of work was on or about November 6, 1996 (week 45), when her employment was suspended because she was unable to perform her usual job duties due to carpal tunnel problems. She has not yet returned to work for the employer. The employe worked and earned wages as a waitress for another employing unit in week 46 of 1996, and again in week 49 of 1996 through week 4 of 1997.

The employe, by virtue of her training and experience, is qualified for a variety of work in the fields of marketing and sales, clerical, service, agriculture, operations,fabrication and labor. All of those types of work are suitable for her and exist within her labor market area. She has continuing medical restrictions which limit her ability to do pushing and pulling motions and lifting and prohibit her from using her hands for repetitive motions. Because of those restrictions, she is physically able to perform only about 10 to 12 percent of the work which would otherwise be considered suitable for her.

Wis. Stat. § 108.04 (1)(b)1., provides that an employe shall be ineligible for benefits based upon employment by an employer while unable to work or unavailable for work, if the individual's employment with that employer was suspended by either party, or was terminated by the employer, because the employe was unable to do work otherwise available with the employer. Since the employe's employment was suspended because the employe was unable to do or unavailable for, suitable work available with the employer, the issue is whether the employe is able to work and available for work in the labor market.

Wis. Admin. Code § ILHR 128.01 (2)(b), applies to totally unemployed claimants and provides that a claimant is not considered able to work and available for work if the claimant's physical condition limits the claimant to less than 15 percent of the opportunities for suitable work in the claimant's labor market. Wis. Admin. Code § ILHR 128.01 (5), provides that the department may require a claimant who is partially unemployed to comply with the requirements of Wis. Admin. Code Ch. 128 if there is some definite indication that the claimant is not genuinely interested in working full time.

The employe was totally unemployed in weeks 45, 47, and 48 of 1996. Her physical restrictions limited her ability to work in those weeks to less than 15 percent of suitable jobs in her labor market. Accordingly, she was not able to work in her labor market in those weeks. In week 46 of 1996, and beginning again in week 49 of 1996, the employe was partially unemployed. She is not subject to the requirements of Wis. Admin Code Ch. 128 unless there is some definite indication that she is unwilling to work full time. There is no such indication in the record. Accordingly, the employe was able to work and available for work in the weeks she was partially unemployed.

The commission therefore finds that in weeks 45, 47, and 48 of 1996, the employe's employment was suspended because the employe was unable to do, or unavailable for, suitable work otherwise available with the employer and the employe was unable to work, or unavailable for work, in those weeks within the meaning of Wis. Stat. § 108.04 (1)(b)1. and Wis. Admin. Code Ch. 128.

The commission further finds that in week 46 of 1996, and in week 49 of 1996 through week 4 of 1997, the employe's employment was suspended because the employe was unable to do, or unavailable for, suitable work otherwise available with the employer but the employe was able to work, or available for work, in those weeks within the meanong of Wis. Stat. § 108.04 (1)(b)1. and Wis. Admin. Code Ch. 128.

DECISION

The decision of the administrative law judge is affirmed in part and reversed in part. Accordingly, the employe is ineligible for benefits in weeks 45, 47, and 48 of 1996. She is eligible for benefits in week 46 of 1996, and week 49 of 1996 through week 4 of 1997, if she is otherwise qualified.

Dated and mailed May 30, 1997
frickbr.urr : 132 : 5  AA 105  AA 240 AA 253

/s/ Pamela I. Anderson, Chairman

/s/ David B. Falstad, Commissioner

MEMORANDUM OPINION

The commission did consult with the ALJ regarding impressions of witness credibility and demeanor. The ALJ indicated that she had no reason to believe the employe was not genuinely interested in working full time.

cc: JO AN BATESON
FISKARS INC


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