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

KIM M FULLER, Employee

HEALTHCARE SERVICES GROUP INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 08602796MW


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 has worked as a housekeeper for the employer, a custodial business, for three years. Her employment was suspended between February 5 and April 4, 2008.

The employee was absent to have surgery on February 7, 2008. She notified the employer that she was released to return to work by her doctor effective March 3, 2008, with the restriction that she not lift anything over fifteen pounds, and that she avoid "straining." The employer did not permit her to return to work because it had no work within those restrictions at that time. She returned to work on April 4, 2008, after a release without restrictions from her doctor became effective. The employee claimed unemployment insurance benefits in weeks 10 through 13 of 2008, the period beginning March 2 and ending March 29, based on her partial release. Suitable work for the employee includes cashiering, housekeeping, laundry worker, receptionist, waitress, unskilled maintenance, stock clerk, ticket taker, parking lot attendant, dishwasher, bus person and hostess. The claimant was able to perform 13 percent of those positions given her physical restrictions.

There is no dispute that the employee's employment was suspended because she was unable to perform suitable work otherwise available with the employer due to her physical restrictions. The restrictions on the employee's physical activities raise the eligibility issue of whether the employee was able to perform suitable work in her labor market. In making that determination, Wis. Admin. Code § 128.01(3) requires consideration of the following factors:

(a) The claimant's usual or customary occupation.

(b) The nature of the restrictions caused by the claimant's physical or psychological condition.

(c) Whether the claimant is qualified to perform other work within the claimant's restrictions considering the claimant's education, training, and experience.

(d) Whether the claimant could be qualified to perform other work within the claimant's restrictions with additional training.

(e) Occupational information and employment conditions data and reports available to the department showing whether and to what extent the claimant is able, within his or her restrictions, to perform suitable work in his or her labor market area.

The claimant could not perform her customary work with the employer. However, the testimony given in this case, which included information from the conditions of employment database utilized by the department, established that the claimant was able to perform suitable work in her labor market area within her restrictions, and could be qualified to perform other work within her restrictions with additional training.

The commission therefore finds that in week 6 of 2008, the employee's employment was suspended by the employer or the employee because the employee was unable to do, or unavailable for, suitable work otherwise available with the employer, but that as of week 10 of 2008, the employee was able to work.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits if otherwise qualified.

Dated and mailed July 25, 2008
fulleki . urr : 132 : 1 : AA 240

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

NOTE: The ALJ found the employee was not able to work because she was not able to perform 15% of suitable work in her labor market. However, the requirement that a claimant be able to perform 15% of suitable work no longer exists. Current law, effective with able and available determinations issued April 6, 2008, and later, determines a claimant's ability to work based on the factors set forth above. The determination in this case was issued on April 10, 2008.

cc: Healthcare Services Group, Inc. (Bensalem, PA)


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