Wis.LIRC UC Decision: Schroedl, Russell - July 3, 2008 - AA 240 - Health, Physical Condition - AA 128 - Leave of Absence of part of a week - AA 105 - Ability to Work - physical condition - where employee missed more than 16 hours of work in two separate weeks, a portion of which was due to a medical suspension, Wis. Stat. � 108.04(1)(b)1 was found to apply and he was able to and available for work in one of the two weeks.

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

RUSSELL N SCHROEDL, Employee

GENERAL MOTORS CORP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 08001716JV

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 four ten hour days for the employer. The employee worked on Monday, March 10, 2008 (week 11). The employee then asked for time off to have gallbladder surgery. The employee missed work on March 11 through March 13 and was otherwise unable to work in that week.

The employee also missed work on March 17 and March 18 in week 12 of 2008. On March 19 the employee's doctor released him to return to work. However, the employer's plant was shut down on March 19 and March 20 and as a result there was no other work available for the employee in that week.

The issue to be decided is the employee's eligibility for benefits in weeks 11 and 12 of 2008.

In this case the employee suspended his employment with the employer beginning in week 11 of 2008, because he was unable to perform suitable work otherwise available. The employee missed more than sixteen hours of work in both weeks. The employee missed all the work that was available to him in week 12 of 2008. The commission finds that Wis. Stat. § 108.04(1)(b)1. applies to the employee's situation. Under that provision the employee is ineligible for benefits while his employment is suspended if he is unable to work in his labor market. The employee was not able to work in his labor market in week 11 of 2008. However, he was able to work in his labor market, and for the employer, in week 12 of 2008.

The commission therefore finds that in weeks 11 and 12 of 2008, the employee's employment was suspended by the employee because he was unable to perform suitable work otherwise available and was not able to work in week 11 of 2008, but able to work as of week 12 of 2008, within the meaning of Wis. Stat. § 108.04(1)(b)1.

DECISION

The decision of the administrative law judge is affirmed in part and reversed in part. Accordingly, the employee is ineligible for benefits in week 11 of 2008. The employee is eligible for benefits beginning in week 12 of 2008, if he is otherwise qualified.

Dated and mailed July 3, 2008
schroru . urr : 132 : 1 : AA 105

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

NOTE: The commission did not discuss witness credibility and demeanor with the ALJ. The commission's partial reversal is not based on credibility but upon reaching a different legal conclusion than reached by the ALJ as to which statutory provision applies to determine the employee's eligibility for benefits.

cc: General Motors Corp. (Janesville, Wisconsin)

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