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

LYNDA J BRUESEWITZ, Employee

AMERICAN MARKETING & PUBLISHING LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05005227MD


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 about 11 months as an outside sales representative for a telephone directory publisher. Her last day of work was October 12, 2005 (week 42), when she went on leave.

The employee was originally scheduled to have surgery on October 17, 2005. She anticipated a four or five week recovery period after that. The employee arranged to be absent for that period. The surgery was postponed and then cancelled. The employee filed a claim for benefits. She returned to work November 7, 2005.

The issues to be decided are whether the suspension of the employment by the employee was because the employee was unable or unavailable for suitable work available with the employer, and if so whether she was able and available for work in the labor market at the time she initiated her claim for benefits or whether the employee was on a voluntary leave of absence granted for a definite period.

In Brook v Department Of Corrections, UI Dec. Hearing No. 03005972MD (LIRC July 23, 2004), the employer argued 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. The commission stated that while it was 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. "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's leave in this case was medical in nature. Therefore, the reasoning in Brook applies. The employee offered certified medical evidence which showed that she had no restrictions as of October 10, 2005. The commission concludes that the employee's employment was suspended during her medical leave, but that she was otherwise able to work.

The commission therefore finds that, in week 42 of 2005, the employee's employment was suspended by the employee because the employee 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 42 of 2005, the employee 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 employee is eligible for benefits beginning in week 42 of 2005, if she is otherwise qualified.

Dated and mailed March 15, 2006
bruesly . urr : 178 : 1  AA 250

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The commission did not consult with the ALJ concerning the credibility of the witnesses. It accepts the findings of the ALJ but reaches a different legal conclusion when applying the law to those facts.

cc: Abram Andezetewski


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