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

KRISTAL L PITEL, Employee

NATURESCAPE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 09604095MW


O R D E R


Wisconsin Statute § 108.09(6)(d), provides that the commission may affirm, reverse, modify or set aside the appeal tribunal decision on the basis of the evidence previously submitted, may order the taking of additional evidence, or it may remand the matter to the department for further proceedings. Pursuant to authority granted in Wis. Stat. § 108.09(6)(d), the commission sets aside the appeal tribunal decision in the above-referenced matter and remands the matter for a new hearing and decision by a different ALJ.

Dated and mailed July 30, 2009
pitelkr : 132 : 5 : PC 735   AA 105

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The ALJ found that the uncontroverted evidence from week 9 of 2009 was that the employee was absent from her labor market for 48 hours during that week due to illness and due to a field trip. The commission disagrees. There is no evidence that the employee absent from her labor market for 48 hours in week 9 of 2009.

The employee's eligibility for benefits in weeks 9 and 10 depends on the number of hours the employee missed in each week. The law provides that if the employee is called on to perform work and misses sixteen hours of work or less, her benefits are reduced by the wages she could have earned. If the employee misses more than sixteen hours of available work the employee is not eligible for benefits. The law further provides that in the first week of a leave, if an employee misses less than sixteen hours of work her benefits are reduced by the wages she could have earned. If the employee misses more than sixteen hours of work in the first week of her leave she is not eligible for benefits.

There was no evidence adduced at the hearing regarding how many hours of work the employee missed in week 9 of 2009. The commission cannot determine whether the employee missed more or less than 16 hours of work in week 9 of 2009. In addition, the employee's leave began in week 10 of 2009, and there was no testimony as to how many hours the employee missed in the first week of her leave. Further, no testimony was adduced as to the employee's wage rate and thus how much the employee could have earned in weeks 9 or 10 of 2009.


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uploaded 2009/08/11