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

LORI J JORDAN, Employee

CROWN SERVICES, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07604643MW


On July 7, 2007, the Department of Workforce Development issued an initial determination which held that the employee was not available for work because she was restricted to less than 50 percent of the suitable full-time jobs in her labor market. The employee filed a timely request for hearing on the adverse determination, and hearing was held on August 15, 2007 in Milwaukee, Wisconsin before a department administrative law judge. On August 29, 2007, the administrative law judge issued an amended appeal tribunal decision modifying and reversing in part the initial determination. The employee filed a timely petition for commission review of the appeal tribunal decision, and the matter now is ready for disposition.

Based upon the applicable law and the record in the case, the commission issues the following:


FINDINGS OF FACT AND CONCLUSIONS OF LAW


The issue in this case is whether the employee is eligible for unemployment insurance for week 24 of 2007 despite having been severely beaten during a criminal attack the Wednesday night of that week (and hospitalized for the remainder of the week). The commission concludes that she is, and so reverses in part the appeal tribunal decision.

In week 24 of 2007, the employee was on layoff from recurring limited term employment with an area state college. At the same time, the employee worked part-time, two shifts per week, for a fast food restaurant. By Wednesday night of that week (when the attack occurred), the employee had worked her scheduled shifts for the week for the fast food restaurant. Following the employee's June 16 release from the hospital, the employee presented herself to the restaurant for work, but was not allowed to return to work for approximately two more weeks. During this time period, the employee was under no medical restrictions limiting her ability to work.

There is no question but that the employee was unable to work for a percentage of week 24 of 2007, specifically the time she was hospitalized. Wisconsin Admin. Code § DWD 128.01(5) states, however, that a claimant "who is partially unemployed" may have to satisfy the ability to work and availability for work requirements only "if there is some definite indication that the claimant is not genuinely interested in working full time." In other words where, as here, a claimant is working part time, the "able and available" requirements only apply if there is definite indication the claimant is not genuinely interested working full time. See Munson v. Deltco of Wisconsin, Inc., UI Dec. Hearing No. 052020307EC (LIRC February 24, 2006); Burman v. Josjen, L.L.C., UI Dec. Hearing No. 01600404RC (LIRC April 24, 2001); and Tegge v. Reedsburg Country Club, UI Dec. Hearing No. 95004980BO (LIRC February 20, 1996). The interest referred to in this provision requires some kind of volition on a claimant's part, such that a medical inability to work does not fall within it. Since there is no such indication that the employee was not genuinely interested in working full time in week 24, she is not required to meet the ability to work requirement of Wis. Stat. § 108.04(2) and Wis. Admin. Code § DWD 128.01(2) for that week.

The commission therefore finds that the employee is eligible for unemployment insurance in week 24 of 2007 pursuant to Wis. Admin. Code § DWD 128.01(5). The commission also finds that, as of week 25 of 2007, the employee was able to work and available for suitable work within the meaning of Wis. Stat. § 108.04(2) and Wis. Admin. Code ch. DWD 128.

DECISION

The appeal tribunal decision is affirmed in part and reversed in part. Accordingly, the employee is eligible for unemployment insurance beginning in week 24 of 2007. As a result of this decision, there is no overpayment to the employee.

Dated and mailed November 8, 2007
jordalo . urr : 105 : 8 AA 253

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner


NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision in this matter. The commission's reversal is not based upon a differing credibility assessment from that made by the administrative law judge. Rather, it is as a matter of law.

cc: Crown Services of WI - Milwaukee, WI


 

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uploaded 2007/11/15