ROBERT W STARK, Employee

KRUEPKE TRANSIT INC, Employer

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.

The decision of the administrative law judge is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 1 of 2002, and until four weeks have elapsed since the end of the week in which the failure occurred and the employee has earned wages in covered employment performed after the week of the failure equaling at least four times weekly benefit rate which would have been paid had the failure not occurred. The employee is also ineligible for unemployment benefits as of week 4 of 2002, and until he is again able to work and available for work. The employee is required to repay the sum of $3,888.00 to the Unemployment Reserve Fund.

Dated and mailed July 31, 2002
starkro . usd : 132 : 8  AA 110  AA 115

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

The employee has petitioned for commission review of the adverse appeal tribunal decision that found he did not have good cause for failing to return to work when recalled by the employer. That decision further found that as of week 4 of 2001, the employee was not available for at least 50 percent of suitable work in his labor market. The commission has reviewed the record in this matter and agrees with the administrative law judge's Findings of Fact and Conclusions of Law. Based on the employee's testimony, his primary motivation for refusing the employer's offer was the amount of unemployment insurance benefits he was receiving. The employee testified that had his unemployment been denied he would have returned to work for the employer. The employee's testimony did not establish that he had actual physical custody of his daughter at the time he refused the employer's offer. Further, it is the employee's responsibility to arrange his personal circumstances to allow him to accept suitable work.

The employee had been unemployed since December 3, 2001. The employee restricted his work search to dump truck driving positions. As noted by the administrative law judge, after six weeks of unemployment the employee was required to expand his work search. Whether the employee was making the necessary minimum employer contacts each week, he was still required to be available for at least 50 percent of suitable jobs in his labor market. An employee's training, experience, and duration of unemployment, along with the availability of jobs in the labor market, determine the suitability of work. Wis. Admin. Code § 100.02(61). Work is not considered "unsuitable" because the employee does not prefer such work or because such work may interfere with the employee's personal or family circumstances. The employee was capable of performing the work and had performed the work in the past.

Finally, as noted by the employer in its brief, the commission's review is on the record of the case including the synopsis or summary of the testimony or other evidence presented at the hearing. Wis. Admin. Code § LIRC 1.04. For this reason, the commission cannot consider factual assertions made in the petition for review, or documents submitted with the petition for review, which were not also made or submitted at the hearing. Since the commission's review must there fore be based on the evidence submitted at the hearing which has already been held, the commission will not address or consider the factual assertions made by the employee which are not supported by the record.

cc: 
Attorney Alan E. Seneczko
Attorney Katherine J. Kruger

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uploaded 2002/08/09