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


LORI A MAYO, Employe

COUNTY OF VILAS, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98200082RH


On January 10, 1998, the Department of Workforce Development issued an initial determination which held that the employe was on a voluntary leave of absence from December 15, 1997 through July 21, 1998. The employe filed a timely request for hearing, and hearing was held on February 11, 1998 in Rhinelander, Wisconsin before a department administrative law judge. On February 12, 1998, the administrative law judge issued an appeal tribunal decision affirming the initial determination. The employe timely filed a petition for commission review, and the matter now is ready for disposition.

Based on the applicable law and the records and other evidence in the case, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked approximately six years for the employer, a county government. Her last day of work was July 21, 1997 (week 30), at which time she took a leave of absence because of stress caused by her supervisor. This leave was taken pursuant to the Family and Medical Leave Act, for a period of twelve weeks. After the twelve weeks expired, the employe requested a leave of absence for medical reasons, pursuant to the collective bargaining agreement between the employer its employes' collective bargaining representative. The issue is whether this second leave was a voluntary leave pursuant to Wis. Stat. § 108.04(1)(b)2. The commission concludes that it was not, and so reverses the appeal tribunal decision.

On August 12, 1997, one of the employe's doctors wrote a letter to the county, in which he indicated that she was unable to return to work until further notice. On October 30, the director of psychiatry at the hospital wrote to the employer, asking that the August 12 letter be considered a request for up to a 12 month medical leave. Again, at this time there is no dispute as to the employe's unavailability for work. In a November 21, 1997 Personnel Committee meeting, the employer granted the employe's leave of absence request, with the proviso that the employe provide a monthly update from her physicians on the progress of her condition. The collective bargaining agreement, finally, allows that employes will be granted leaves of absence for medical reasons up to 12 months.

Except for the 12-week leave pursuant to the Family and Medical Leave Act, the employe's absence was not for a definite period, but rather was open-ended, dependent upon the employe's release from her physician to return to work and the availability of employment for the employe. No one disputes that the employe is not to return to her original position under her original supervisor. The employe was able to work as of December 14, 1997 but, according to the employer's Personnel Committee secretary, there was no other position available with the employer.

The administrative law judge resolved the case under Wis. Stat. § 108.04(1)(b)2, which provides that an employe is ineligible for benefits while on a voluntary leave of absence granted for a definite period. The employe's leave of absence was due to medical necessity, however, and so can not be said to be voluntary within the meaning of this statute.

Wisconsin statute § 108.04(1)(b)1 provides that an employe is ineligible for benefits:

While the employe is unable to work, or unavailable for work, if his or her employment with an employer was suspended by the employe or by the employer or was terminated by the employer because the employe was unable to do, or unavailable for, suitable work otherwise available with the employer.

This statutory subsection better fits the circumstances of the employe's absence from work. The employe did not voluntarily leave her work but rather had to take a medical leave. In addition, the employe's leave was not for a definite period of time, but rather was open-ended. The physicians' letters do not indicate that the leave was for a definite period; nor do the notes from the Personnel Committee's November 21, 1997 meeting. Pursuant to Wis. Stat. § 108.04(1)(b)1, an employe's ineligibility for benefits continues only while the employe is unable to work, or unavailable for work. These are general availability requirements, and the employe's specific limitation as to the one job she cannot perform does not prevent her from meeting those requirements.

The commission therefore finds that, in week 43 of 1997, the employe's employment was suspended by the employe because the employe 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, but that beginning in week 51 of 1997, the employe was able to work and available for work in the general labor market, within the meaning of Wis. Stat. § 108.04(1)(b)1.

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is eligible for benefits beginning in week 51 of 1997, if she is otherwise qualified.

Dated and mailed: May 15, 1998
mayolin.urr : 105 : 8 AA 126.3

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision in this case. The commission's reversal of the appeal tribunal decision is not based upon a differing credibility assessment from that of the administrative law judge. Rather, both the employe's and employer's evidence indicates that the leave was not a voluntary one for a definite period of time, that it was instead a medical leave of indefinite duration.

cc: WILLIAM GLAVES
CORPORATION COUNSEL
VILAS COUNTY COURTHOUSE


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