LUCY P GRINNAGE, Employee

AMJ SERVICES, Employer
 

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 by the Department of Workforce Development.

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:

The issues to be decided are whether the employee's leave of absence, or suspension of employment by the employee or employer, was because the employee was unable to do or unavailable for, any suitable work available with the employee and if so, whether the employee was able to work and available for work in the labor market at the time the claim for unemployment benefits was initiated.

On May 17 or 18, 2008, the employee suffered a mild heart attack. She was hospitalized and had a pace maker installed. The employee was inpatient in the hospital for seven days.

Upon her release from the hospital, she was given a five pound lifting restriction and told to refrain from engaging in bending or reaching. Given those restrictions, the employee was unable to return to her job as a cleaner for the employer. In her position as a cleaner, the employee was expected to engage in such activities as sweeping, mopping, vacuuming and dusting. The employee acknowledged that she would not be able to perform such duties with the restrictions she currently has. With her restrictions, the employee was able to perform less than five percent of suitable work in her labor market.

The employee was not returned to work for the employer and has not worked anywhere since her heart attack.

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.

The commission therefore finds that in week 21 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 22 of 2008, the employee was able to work.

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

Dated and mailed August 14, 2008
grinnlu . urr : 132 : 1 : AA 240

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

NOTE: The ALJ found the employee was not able to work referencing a requirement that the employee be able to perform at least 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 June 14, 2008.

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uploaded 2008/08/20