MICHELLE L BROOK, Employee

DEPARTMENT OF CORRECTIONS, 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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

The decision of the administrative law judge is affirmed. Accordingly, the employee is eligible for benefits beginning in week 27 of 2003, if otherwise qualified.

Dated and mailed July 23, 2004
brookmi . usd : 150 : 1    AA 126.3

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

The employer petitioned the appeal tribunal decision arguing that the employee should not be eligible for unemployment insurance benefits on the grounds that her absence from work constituted a voluntary leave of absence within the meaning of Wis. Stat. § 108.04(1)(b)2.  Petitioner contends that the employee's leave was voluntary because she submitted a request for a leave of absence and the absence was for a definite period.  While it is true that the employee did request a definite leave of absence and submitted paperwork to support the leave, the basis for her leave was medical in nature.  The employee submitted medical documentation both to the employer and to the appeal tribunal establishing that her leave was for medical reasons.  A leave for medical purposes is not a voluntary leave but rather a suspension under Wis. Stat. § 108.04(1)(b)1.  Topel Jr. v. County of Milwaukee, UI Dec. Hearing No. 02608748MW (LIRC May 21, 2003); and Mayo v. County of Vilas, UI Dec. Hearing No. 98200082RH (LIRC May 15, 1998).  Pursuant to Wis. Stat. § 108.04(1)(b)1, the employee is eligible for unemployment insurance benefits during the period of the leave if she is otherwise able and available for work.  The employee met this burden with certified medical evidence. For these reasons, the appeal tribunal decision is affirmed.

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uploaded 2004/07/27