ELIZABETH M FOWLER, Employee

HANOVER HOME FASHIONS GROUP LLC, 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 makes the following:

The employee worked for a telemarketing firm. She was laid off in week 17. The employee has significant health problems which limit her availability for work. Throughout her most recent employment, she was limited to 18 to 23 hours per week due to her health conditions. As of the hearing, she had returned to work for the employer under the same terms and conditions she had been working before. In week 17, she was also able to work under the same terms and conditions as during her employment.

The employee's restriction in the number of hours she could work limited her to less than 10% of the suitable work in her labor market.

The issue is whether the employee was otherwise able and available for suitable work in her labor market.

The Wisconsin Administrative Code at DWD 128.02 provides:

(1) The department shall consider a claimant to have satisfied the requirements of this chapter for certain designated grace periods enumerated under sub. (2) if:

(a) The claimant's physical or psychological condition, or personal circumstances over which she has no control limits the claimant to less than the 15%, but more that 0%, of the opportunities for suitable work as specified under DWD 128.01(2);

(b) The claimant is able to and available for work under the same conditions which applied to the claimant's most recent period of employment; and

(c) The claimant's most recent separation from work was due to a layoff or termination of the employment relationship unrelated to the limitation in (d) par. (a.)

Despite the fact that the employee was able to perform only 10 percent of the suitable work in her labor market, she was able to work within the same restrictions both before and after her layoff from her employment. In week 17, the only week at issue here, she was still within her grace period as detailed above. She is therefore eligible for benefits in week 17.

The commission therefore finds that as of week 17 of 2002, the employee was available for work, within the meaning of Wis. Stat. § 108.04(2)(a) and Wis. Admin. Code § DWD 128; and that she is entitled to a grace period for that week, within the meaning of the law.

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits in week 17 of 2002.

Dated and mailed February 27, 2003
fowleel . urr : 178 : 3 AA 105  AA 240 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

The commission has reversed as a matter of law. No credibility consultation was necessary since the commission accepts the facts found by the ALJ.

The commission notes that the employee testified at the hearing that she sustained a medical crisis after week 17 which further limited her ability to work. If the employee had continued her claim after week 17, her changed circumstances would have affected her eligibility under the grace period exception above.

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uploaded 2003/03/10