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

VALERIE M MYERS, Employee

RITEWAY BUS SERVICE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 08605665AP


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

In October of 2002, the employee began working as a school bus driver for the employer. In May of 2006, she assumed the duties of a motor coach driver. In late July of 2008, she experienced dizziness and blackout spells. Because of this medical condition, she could not perform the duties of a motor coach driver for the employer, namely driving. As such, on July 30, 2008 (week 31), she began a leave of absence from the employer. The same day, she initiated a claim for unemployment insurance benefits. In week 31 of 2008, she was absent from work for more than 16 hours.

The employee's usual or customary occupation is that of a motor coach driver. As stated above, because of her medical condition, she could not perform those duties as of the date she initiated a claim for unemployment insurance benefits.

In addition to the employee's usual or customary occupation, she has experience working in customer service. In that position, she has made phone sales for around 10 years. She also has two years' experience working as a sous chef, making soups and preparing meals. Her inability to drive would not have prevented her from performing the duties of those jobs as of the date that she initiated a claim for unemployment insurance benefits. These positions exist within her labor market.

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

Wis. Stat. § 108.04(1)(b) provides:

1. Except as provided in subd. 2., if an employee's employment is suspended by the employee or the employee's employer or an employee is terminated by the employee's employer, due to the employee's unavailability for work or inability to perform suitable work otherwise available with the employee's employer, or if the employee is on a leave of absence, the employee is ineligible for benefits while the employee is unable to work or unavailable for work.

2. If an employee is absent from work for 16 hours or less in the first week of a leave taken under subd. 1. or in the week in which a suspension or termination under subd. 1. occurs, the employee's eligibility for benefits for that week shall be determined under par. (bm).

Wis. Stat. § 108.04(a)(bm) provides:

For purposes of par. (a)1. and (b)2., the department shall treat the amount that the employee would have earned as wages for a given week in available work as wages earned by the employee and shall apply the method specified in s. 108.05(3)(a) to compute the benefits payable to the employee. The department shall estimate wages that an employee would have earned if it is not possible to compute the exact amount of wages that would have been earned by the employee.

Wis. Admin. Code § DWD 128.01 provides:

Able to work and available for work. (1) APPLICABILITY. Under s. 108.04(2), Stats., a claimant shall be eligible for unemployment benefits for any week of total unemployment only if the claimant is able to perform suitable work and available for suitable work. Under ss. 108.04(1)(b), 108.04(7)(c), and 108.04(8)(e), Stats., a claimant shall be eligible for unemployment benefits only if the claimant is able to perform suitable work and available for suitable work. The department may determine the claimant's ability to perform suitable work and availability for suitable work at any time through questioning of the claimant and other procedures.

(2) PRESUMPTION. Unless evidence is obtained that in the relevant week the claimant was not able to work or available for work, a claimant is presumed able to work and available for work for any week that all of the following conditions are met:

(a) The claimant has registered for work and has complied with ss. DWD 126.02 and 126.04, or registration is waived under s. DWD 126.03 or excused under s. DWD 126.05.

(b) The claimant has complied with the work search requirements of s. 108.04(2)(a) 3., Stats., and ch. DWD 127, or a work search is waived or excused under ch. DWD 137.

(3) ABLE TO WORK. Able to work means that the claimant has the physical and psychological ability to perform suitable work. During any week, a claimant is not able to work if the claimant is unable to perform any suitable work due to a physical or psychological condition. In determining whether the claimant is able to perform suitable work, the department shall consider all factors relevant to the circumstances of the case, which may include the following:

(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.

In this case, the employee began a leave of absence with the employer on July 30, 2008 (week 31), and in that week and thereafter she was able to perform other work within her restrictions considering her education, training, and experience, namely positions as a sous chef and in customer service (phone sales). Because these positions exist within her labor market, she is eligible for benefits beginning in that week, if otherwise qualified.

The commission therefore finds that, beginning in week 31 of 2008, the employee was able to work and available for work in the employee's labor market, within the meaning of Wis. Stat. § 108.04(1)(b)1 and chapter DWD 128 of the Wisconsin Administrative Code.

DECISION

The decision of the administrative law judge is modified as to the week of issue and as modified is affirmed. Accordingly, the employee is eligible for benefits beginning in week 31 of 2008, if otherwise qualified.

Dated and mailed January 20, 2009
myersva . urr : 145 : 1 AA 105

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The department petitioned the ALJ's decision because it disagreed with the ALJ's conclusion that because the employee was absent from work for more than 16 hours in week 31, she is ineligible for benefits pursuant to Wis. Stat. § 108.04(1)(b)2. The department's position is that Wis. Stat. § 108.04(1)(b)2 applies only when the claimant is not able to work and available for work. The claimant in that situation may be eligible for a partial benefit check if the claimant missed 16 hours of work or less in that week. Because the claimant was able to work and available for suitable work in week 31 the ALJ did not need to apply the 16-hour provision for that week.

cc: Attorney Daniel J. La Rocque


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uploaded 2009/02/03