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


DELMAR BURMAN, Employee

JOSJEN LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01600404RC


An administrative law judge 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 administrative law judge. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for the employer, a recycling business, for five years as a truck driver. On October 27, 2000 (week 44) he temporarily suspended his employment in order to undergo knee surgery. The employee returned to work on December 8, 2000 (week 50) with light duty restrictions. He expected to return to work 40 hours a week, but only received 15 to 25 hours of work. The employee therefore initiated a claim for partial benefits in week 50 of 2000.

The question to decide is whether the employee is eligible for benefits as of the week in which he initiated his benefit claim.

A general requirement for benefit eligibility during any given week is that a claimant must be able to work and available for work during the week in question. Wis. Stat. § 108.04(2)(a)1. Chapter DWD 128 of the Wisconsin Administrative Code addresses the circumstances under which a claimant will be considered able and available. With respect to claimants who are not completely unemployed, Wisconsin Administrative Code § DWD 128.01(5), provides as follows:

"The department may require a claimant who is partially unemployed to comply with the requirements of this chapter if there is some definite indication that the claimant is not genuinely interested in working full time, or if the claimant is incarcerated and is not permitted to look for work on the general labor market."

In week 50 of 2000 the employee was partially unemployed. In the absence of any reason to believe that he was not genuinely interested in working full time, he is not subject to the requirements of Wis. Admin. Code ch. 128.

The commission therefore finds that, as of week 50 of 2000, the employee was able to work and available for work, within the meaning of Wis. Admin. Code ch. 128.

DECISION

The decision of the administrative law judge is amended as to the week of issue and, as amended, is reversed. Accordingly, the employee is eligible for benefits beginning in week 50 of 2000, provided he is otherwise qualified.

Dated and maile April 24, 2001
burmade . urr : 164 : 1 AA 240  AA 253

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

NOTE: The commission conferred with the administrative law judge regarding his impressions of witness credibility and demeanor. The administrative law judge credited the employee's testimony that he wanted to work full time, and the commission sees no reason to disagree.


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uploaded 2001/04/30