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

KAROL J MCQUILLAN, Employee

LYNFORD E LOOKER , Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03005059MD


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 works as a caregiver for the employer, an elderly gentleman. She began working as his caregiver in 1997. She continues to work for him. The employee filed for unemployment insurance benefits in 2002 and 2003. She continues to do so.

The initial issue is whether the employee quit her employment by reducing the number of hours she worked for the employer. A secondary issue is whether the employee quit for a reason that entitles her to immediate benefit payment. Additional issues include whether the employee is able to work and available for work and if she is not entitled to benefits, whether she received benefits that she now must repay to the department.

In 1997, the employee performed personal care services, cleaning services and shopping services for the employer, an elderly gentleman. She worked 20 hours per week. During the fall of 2002, the employer suffered a stroke. He now required additional personal care services. The employee tried to perform such services and was working 40 hours per week. However, her health status limited her ability to lift more than 10 to 12 pounds. As such, she was unable to continue to provide all the employer's personal care services. The employer hired an additional caregiver. The new caregiver took over the employer's personal care services. The employee continued to do the shopping and cleaning. She went back to working 20 hours per week as of early December 2002. However, in late January 2003, the employee reduced her hours to 13 hours per week. The new caregiver took over duties that required lifting as the employee advised the employer that she could no longer perform such duties. The employee continued to perform cleaning and shopping duties at 13 hours per week.

Beginning in week 19 of 2003, (week ending May 10, 2003), the employee reduced her hours to 12 hours per week. She advised the employer that she could no longer perform the one-hour per week shopping duties as she could not lift the shopping bags. The employee testified that she has back problems and cannot even do her personal shopping.

The employee testified that she suffers from depression and anxiety. She was diagnosed with lumbar osteoarthritis and fibromyalgia. As of April 17, 2003, the employee's doctor restricted her to sedentary work duties and no stooping, crouching or crawling. The employee's doctor advised that these restrictions were in effect for two weeks and that thereafter, the employee would need to be reevaluated. However, the employee was not reevaluated because she has no medical insurance or money with which to pay a doctor. The employee testified that in her opinion, the above restrictions applied to her as early as December 2000 and continued to apply to her as of the date of the hearing. The employee testified that her health has not improved.

The employee has work experience as a home health care aide, homemaker and house cleaner. Per a Certified Expert Report on Labor Market Conditions, the employee, with her medical restrictions, is able to work and available for less than 15 percent of all suitable work in her labor market.

The issue is whether the employee is eligible for benefits based on the ending of her employment with the employer. The statutes provide that an employee's voluntary reduction in hours worked, for an indefinite period, will be considered as a voluntary termination of employment. In addition, wages earned after such a voluntary reduction cannot be used to requalify for benefits, if the employer has informed the employee of this effect of the request for voluntary reduction in hours before granting the request for a reduction. Moreover, benefits paid based on such employment will not be charged to the account of an employer who is subject to the unemployment compensation contribution requirements.

In the present case, the employee reduced her work hours from 13 to 12 beginning in week 19 of 2003. While not all such small reductions in work hours might be considered quitting, the employee in this case voluntarily reduced her work hours from 20 hours per week to 13 hours per week. This reduction in work hours was not reported to the department at the time and as such, the department did not have the opportunity to issue a determination as to whether she quit in December of 2002. As such, the commission concludes that the one-hour reduction amounts to a quit in week 19 of 2003.

The employer did not notify the employee in writing that wages earned from the employer after her reduction could not be used to satisfy the requalification requirements of a quit due to reduced hours.

Wis. Stat. § 108.04(7)(a) provides that an individual who quits a job will have all of his or her benefit eligibility suspended. That suspension is imposed regardless of whether benefits will be paid by the employing unit that he or she quit or by any other employing unit. The only exceptions are those stated in the law.

The employee quit because she could no longer physically handle the shopping duties. As such, the employee argues that she quit pursuant to Wis. Stat. § 108.04(7)(c). This exception to the quit disqualification allows benefits if the claimant quit his or her job because he or she was no longer physically able to handle the job duties, but that the claimant remains otherwise able to work and available for work in the general labor market.

In this case, the employee quit because she had to reduce her hours as a result of her medical condition. The employee brought this to the employer's attention and the employer permitted her to work the reduced hours. As such, the employee exhausted reasonable alternatives prior to quitting. Therefore, the employee is eligible for immediate benefit payment if she establishes that she is able to work and available for work. In this case, certified labor market evidence indicated that the employee was able to perform about 14 percent of all suitable work in her labor market, given her medical restrictions.

Wis. Admin. Code. Ch. 128 requires a claimant to be able to work and available for work. Wis. Stat. § 108.04(2) states simply that the claimant, in order to be eligible for benefits must be "able to work and available for work, during any week in which the claimant earns no wages." Wis. Admin. Code Ch. DWD 128 provides further information. Specifically, Wis. Admin. Ch. § 128.01(2) "A claimant is not considered to be able to work or available for work in any given week if:

(a) The claimant, without good cause, restricts his or her availability for work to less than 50% of the full-time opportunities for suitable work, including all such jobs whether vacant or filled, in the claimant's labor market area;

(b) The claimant's physical condition or personal circumstances over which the claimant has no control limit the claimant to less than 15% of the opportunities for suitable work, including all such jobs whether vacant or filled, in the claimant's labor market area; or"

The employee contended that her physician's restrictions should not preclude her benefit eligibility as of week 19 of 2003. The commission agrees. The employee worked and earned wages during each of those weeks. Consequently, because she did earn wages during those weeks, the statutory requirement for ability to work, or availability to work, does not apply. As such, the employee is eligible for benefits in every week that she worked and earned partial wages.

The commission therefore finds that in week 19 of 2003, the employee voluntarily terminated her employment with the employer by voluntarily reducing the hours of work but that before granting the employee's request to reduce the hours of work the employer did not notify the employee in writing that any wages earned while working the reduced hours could not be used to satisfy the requalification requirement, within the meaning of Wis. Stat. § 108.04(7m).

The commission further finds that in week 19 of 2003, the employee quit her employment because she was unable to do her work, but had no reasonable alternative, but that she was not able to work and available for work, within the meaning of Wis. Stat. § 108.04(7)(c). However, as of week 19 of 2003 and during the weeks that the employee was partially employed, the availability requirements do not apply to the employee.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 19 of 2003, and for any week in which she was partially employed.

Dated and mailed February 27, 2004
mcquika . urr : 145 : 8  VL 1023.10  VL 1039.09 

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

The commission did not reverse the ALJ's decision based on a different impression of witness credibility and demeanor but rather, because the commission reached a different legal conclusion when applying the law to the facts found by the ALJ.


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