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

MARY A KONZ, Employee

COUNTY OF PORTAGE, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02400693WR


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.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is eligible for benefits beginning in week 37 of 2001, if she is otherwise qualified. There is no overpayment of benefits totaling $1922 as a result of this decision.

Dated and mailed January 22, 2003
konzma . usd : 135 : 8   AA 120  AA 126.3 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

In its petition for commission review and brief, the employer argues that the employment separation should be characterized as a voluntary leave of absence granted for a definite period pursuant to Wis. Stat. § 108.04(1)(b)2. The employer argues that the employee asked for such a voluntary leave even though she would have preferred to have a reasonable accommodation. After a careful and thorough review of the record, the commission is satisfied that it supports the administrative law judge's conclusion that the employee's employment was suspended by the employer because the employee was unable to do or unavailable for suitable work otherwise available with the employer within the meaning of Wis. Stat. § 108.04(1)(b)1. Furthermore, the employee was able to work on the general labor market within the meaning of that statutory section.

The employer's argument discounts or ignores its own September 7, 2001 letter (Exhibit 1) in which it informed the employee that she "must cease work immediately and vacate the work site and will not be allowed to return to work until/unless you provide medical certification acceptable to Portage County, which indicates that you are able to safely perform all of the tasks, including heavy lifting, outlined in your job description." What transpired after the employer's September 7, 2001 letter, including the employee's numerous accommodation requests and ultimately her request for an extended definite leave, does not alter the fact that the employer suspended her employment prior to these requests because she was physically unable to do the work for the employer within the meaning of Wis. Stat. § 108.04(1)(b)1. Accordingly, the commission affirms the appeal tribunal decision.

cc: 
County of Portage
Blair Ward/Corp Counsel


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uploaded 2003/01/31