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

DEIDRE S HINES, Employee

ADVANCED HEALTHCARE SC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02600959MW


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 makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for about 14 months as a medical records clerk for the employer, a medical records filing company. Her last day of work was October 30, 2001, (week 44). She initiated a claim for unemployment benefits in week 2 of 2002, the calendar week ending January 12.

As of week 2 of 2002, the calendar week ending January 12, the employee was enrolled in school as a high school student. She turned 18 on September 14, during her senior year in high school.

The issue to be decided is whether the employee was able to work and available for work in her labor market as of week 2 of 2002.

Wis. Stat. § 108.04(2) states simply that the claimant, in order to be eligible for benefits must be "able to work and available for work, during any week in which the claimant earns no wages." Wis. Admin. Code § DWD 128 provides further information. Specifically, "(2) A claimant is not considered to be able to work or available for work in any given week if:

(a) The claimant, without good cause, restricts his or her availability for work to less than 50% of the full-time opportunities for suitable work, including all such jobs whether vacant or filled, in the claimant's labor market area:

(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; or"

There is a note that states:

"Section DWD 128.01(2)(a) applies to a claimant whose restrictions on availability for work are within his or her power to change or alter. School attendance is generally a controllable restriction and therefore, 'without good cause' unless the person is enrolled in an approved training program under s. 108.04(16), Stats. The wage demand of a claimant is also considered a controllable restriction. A claimant obligated to care for minor children is expected to make arrangements, which would permit the claimant to accept suitable work. Unwillingness or failure to make such arrangements are controllable restrictions and, normally, without good cause.

Section DWD 128.01(2)(b) applies to a claimant whose physical condition or uncontrollable personal circumstances limit the opportunity for suitable work. A claimant may be severely limited in the type of work which he or she could perform because of illness, disability, injury or age, but still be able to perform at least 15% of the suitable jobs in the claimant's labor market area."

The commission has interpreted the note to define high school as a controllable restriction. The commission has also found that high school attendance did not give a claimant good cause for restricting his or her availability for work. See Bryan C. Lang v. General Business Services Inc., UI Dec. Hearing No. 98003796MD (LIRC February 16, 1999); Christina Mitchell v. North Side Big Value Store, UI Dec. Hearing No. 97600370MW (LIRC May 8, 1997). Under the commission's interpretation, high school students would need to be available for 50 percent or more of suitable work. Because of her school attendance, the claimant here was not available for at least 50 percent of suitable work.

The ALJ in the present case reasoned that the claimant's high school attendance was not controllable in her case because Wis. Stat. § 118.15 provides that children between the ages of 6 and 18 must be enrolled in school or some equivalent program. The ALJ found that the employee was attending high school as of week 2 of 2002, the calendar week ending January 12, when she initiated her claim for benefits. Her classes met each day beginning at 7:30 a.m. and ending prior to noon. She was available for work between 2:00 p.m. and 10:00 p.m., Monday through Friday. She had worked second shift work hours with the employer. She had work experience as a cashier, volunteer, receptionist, medical records clerk and babysitter.

When all suitable work, both full-time and part-time is considered, the labor market expert opined that the employee might be available for as much as 15 percent of the suitable work.

As such, the employee was arguably available for more than 15 percent of the work in her labor market despite her high school attendance. Thus, the ALJ determined that the claimant was able to work and available for work.

The commission acknowledges that the ALJ's interpretation of the phrase "personal circumstances over which the claimant has no control" may not be unreasonable given that state law compels children under the age of 18 to attend school. However, the note to Wis. Admin. Code § DWD 128.01 which further defines circumstances over which the worker has no control specifically states that school attendance, unless it is in an approved training course, is within the claimant's control. While the word "generally" in that note may be interpreted to exclude compulsory education of all children between the ages of 6 and 18 years of age, the department and the commission have previously construed the rule and the note to define compulsory school attendance as a "controllable restriction." Further, the employee in this case turned 18 in September of 2001.

The commission therefore finds that in week 2 of 2002, the claimant was not able to work and not available for suitable work, because she earned no wages and was therefore subject to the availability requirement, within the meaning of Wis. Stat. § 108.04(2)(a) and Wis. Admin. Code § DWD 128.

DECISION


The decision of the administrative law judge is reversed. Accordingly, the claimant is ineligible for benefits for week 2 of 2002, and until she is able to work and available for work. There is no overpayment as a result of this decision.

Dated and mailed July 17, 2002
hinesde . urr : 145 : 1  AA 205

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner


MEMORANDUM OPINION

The commission did not discuss witness credibility and demeanor with the ALJ who held the hearing. The commission does not reverse the ALJ as the result of a differing assessment of the credibility of the witnesses, but reaches a different conclusion as a matter of law.


cc: Gregory A. Frigo


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uploaded 2002/07/26