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

EVA L HOFFMAN, Employee

AURORA MEDICAL CENTER OF OSHKOSH INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07402467AP


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.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is eligible for benefits beginning in week 35 of 2007, if otherwise qualified.

Dated and mailed January 18, 2008
hoffmev . usd : 178 : 1  AA 253

James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

In its petition for commission review, the employer argues that because the employee's physical limitations limit her to less than 15 percent of the suitable jobs in her labor market, she should be ineligible for benefits.

The ALJ found that the employee was eligible because she is partially employed and therefore the fact that she is restricted below 15 percent of the labor market is not determinative.

Wisconsin Administrative Code § DWD 128.01(5) states 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." The commission has held frequently that when 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 Jordan v. Crown Services, UI Hearing No. 07604643MW (LIRC Nov. 8, 2007); 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). These cases also hold that the interest referred to in this provision requires some kind of volition on a claimant's part, and a medical inability to work does not fall within it.

The employee testified that were it not for her back, she would be working full time. Therefore, 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). Therefore, the commission affirms the appeal tribunal decision.

 

cc: Aurora Health Care (Oshkosh, Wisconsin)



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