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

JOSEPH R  De ROSE Jr, Employee

LAKEVIEW NEUROREHAB CENTER MIDWEST INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02605288RC


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 three months as a maintenance technician for the employer, an operator of a neurological rehabilitation business. His last day of work was May 20, 2002 (week 21). He terminated his work on May 22, 2002 (week 21). He initiated a claim for benefits in week 21 of 2002, the calendar week ending May 25, establishing a weekly benefit rate in the amount of $324.

The employee had worked previously for the employer for about one year through October 2001. During both periods of employment, he worked on a part-time basis, averaging about 18 hours per week. He also worked full time for another employing unit operating a manufacturing business. On May 21, 2002 (week 21), he received notice of layoff from that job. Because he wanted to seek full-time work, he terminated his employment with the employer. During week 20 of 2002, the calendar week ending May 18, he worked about 18 hours for the employer at an hourly rate of pay of $12.50. He had one child in school, which cost him virtually nothing, and one child in daycare at a weekly rate of $110. He drove 30 miles per week to get to and from his job.

The issue to be decided is whether the employee's quitting was for any reason that would permit the immediate payment of unemployment benefits.

Wis. Stat. § 108.04(7)(a), provides that a worker who terminates his or her employment will have benefits suspended until four weeks have elapsed since the week of quitting and until wages of four times the applicable weekly benefit rate are earned in covered employment. The only exceptions are those stated in the law.

Wis. Admin. Code § DWD 132.03(3)(b) provides as follows:

"To determine whether the loss of the full-time work makes it economically unfeasible for the claimant to continue the part-time work, the department shall add the amount of the claimant's gross wages from the part-time work for the week preceding the week in which the claimant terminates the part-time work to the amount of unemployment benefits payable for that week and subtract from this sum the expenses incurred by the claimant in that week for the part-time work. If the remainder is less than the claimant's full weekly benefit rate for that week, the department shall consider it economically unfeasible for the claimant to continue the part-time work."

In this case, the employee quit his employment with the employer effective in week 21 of 2002. Therefore, the commission must consider the employee's situation in week 20 of 2002. The employee did not have exact information about week 20. He did testify that if he continued to work part-time it would reduce his benefits from $324 to $174 per week. He was working from 8:45 a.m. until 12:45 p.m. Department records support his assertion that his weekly benefit rate is $324.

In week 20 of 2002, the best information indicates wages of $224. The employee's full weekly benefit rate is $324. Subtracting the first $30 he earned leaves $294. 67 percent of $294 would be $196. That would be the unemployment insurance payment he was entitled to had he worked 18 hours.

He traveled 30 miles round trip. Using the IRS standard mileage rate of 34.5 cents per mile, his mileage amounted to $10.35. The ALJ used the state mileage rate, but the commission has used the federal mileage allowance in similar situations. See Mary E. Smielewski v. Johnson Bank (UI Hearing No. 02602323RC, October 3, 2002); Cory J. Schutz v. Research Products Corporation (UI Hearing No. 98001619BO, (LIRC November 24, 1998) citing Ball v. School District of Kewaskum, UI Dec. Hearing No. 91607330WB (LIRC Aug. 14, 1992).

The employee has $110-120 of daycare expenses. His wages and benefits payable for the week add up to $420, and deducting his travel expenses leaves $409.65. Deducting the smaller daycare number, or $110, leaves $299.65. This is less than his weekly benefit rate of $324.00.

The commission therefore finds that in week 21 of 2002, the employee voluntarily terminated part-time work consisting of not more than 30 hours per week with the named employer because the loss of the employee's full-time employment made it economically unfeasible to continue this part-time work, within the meaning of Wis. Stat. § 108.04 (7)(k).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 21 of 2002, if otherwise qualified.

If the employer is subject to the constribution requirements of the unemployment insurance law, any benefit payable to the employee based on work performed for the employer prior to the quitting will be charged to the fund's balancing account.

Dated and mailed October 31, 2002
derosjo . urr : 145 : 8  VL 1039.09 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

Laurie R. McCallum, Commissioner

MEMORANDUM OPINION

The commission did not discuss witness credibility and demeanor with the ALJ who held the hearing but reverses because it used different amounts in the calculation made by the ALJ, specifically, the travel expenses were different because the commission used the federal mileage allowance. In addition, the ALJ used the employee's full weekly benefit rate in the calculation, rather than the benefits payable to the employee.

cc: Attorney Thomas W. Durkin


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