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

JOAN M ROBINSON, Employee

ASHLEY HOMESTORES LTD, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03005181MD


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 during eight months as a greeter for the employer, a retail store until she was laid off on May 30, 2003 (week 22). She applied for unemployment insurance benefits in week 24 of 2003, the calendar week ending June 14.

Due to wrist and knee problems the claimant was restricted to working 18 to 23 hours of work each week by her physician. In addition, she was limited to sedentary work with particular instructions to avoid stooping, crouching, crawling and kneeling. Considering all the limits on the hours of availability she remained available for more than zero but less than five percent of the jobs that would otherwise be suitable for her if she had no restrictions.

The issue to be decided is whether the claimant was able to work and available for work in the labor market.

As of the date of the hearing, the employee was able to work under the same terms and conditions she had been working in her employment with the employer.

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 limit the claimant to less than 15%, but more than 0%, of the opportunities for suitable work as specified under DWD 128.01(2)(b);
(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 a termination of the employment relationship unrelated to the limitation in par. (a.)

(2)(a) If all of the wages paid in the 26-week period immediately preceding the week in which the claimant initiates the benefit claim were earned under substantially the same conditions as applied to his or her most recent employment, the department shall grant the claimant a continuing grace period beginning with the week after the week in which the claimant's layoff or termination occurred.

Despite the fact that the employee was able to perform less than five 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. She was laid off because her position was "phased out" for monetary reasons. All of the wages paid in the 26-week period immediately preceding the week in which the employee initiated her claim were earned under substantially the same conditions as applied to her most recent employment, so she is entitled to a continuing grace period beginning with the week after the week in which her layoff occurred.

The commission therefore finds that as of week 23 of 2003, 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 continuing grace beginning with that week, within the meaning of the law.

DECISION

The decision of the administrative law judge is amended as to the week of issue and as amended, is reversed. Accordingly, the employee is eligible for benefits as of week 23 of 2003, if otherwise qualified.

Dated and mailed January 22, 2004
robinjo . urr : 145 : 1   AA 105

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

The commission does not reverse the ALJ's decision because of a differing impression of witness credibility and demeanor but reverses as a matter of law.


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uploaded 2004/01/26