CYNTHIA R WRIGHT, Employee

INDEPENDENCE FIRST INC, 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.

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 employee worked for approximately two years, most recently as a personal care worker, for the employer, a social services business. Her last day of work was February 27, 2009, and her employment was suspended on March 2, 2009 (week 10).

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 with the employer 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 February 27, 2009, the employee slipped and fell on some ice. She injured her right shoulder in that fall. She obtained medical care for her injury and was directed by her physician to perform no work. On March 2, 2009, the employee telephoned the employer and informed it that she was unable to work. She began a medical leave of absence at that time. She kept the employer informed of her status while she was on restrictions that prohibited her from using her left arm and that limited her to working no more than 20 hours per week. She contacted the employer and informed it of her release to return to work. The employer explained that she could not return to her work restrictions. On July 1, 2009, she initiated her claim for unemployment insurance benefits. As of that date, she was subject to the physician's restrictions that prohibited the use of her left arm and limited her to a maximum of 20 hours of work per week.

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.

(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.

The employee argued that she was able to work and available for work. The commission agrees. The employee was only able to work 20 hours per week. Labor market information from the department indicated that she could perform 1,891 nurse aide/orderly positions in her labor market and 7,554 cashier/checker positions. The employee had experience in both these fields.

The commission held, in Eaton v. R & D Drywall, Inc. UI Dec. 08004119MD, (LIRC July 27, 2009) that a claimant "with a physical and/or psychological restriction is required to be able to work. However, the employee need not be able to work full-time." In the present case, labor market reports demonstrate that even though the employee is limited to part-time work, the employee is able to perform a number of jobs in her labor market.

The commission therefore finds that in week 10 of 2009, the employee's employment was suspended by the employee because the employee was unable to do, or unavailable for, suitable work otherwise available with the employer and the employee was unable to work, or unavailable for work, within the meaning of Wis. Stat. § 108.04(1)(b)1.

The commission further finds that as of week 27 of 2009, the employee was able to work and available for work, within the meaning of Wis. Stat. § 108.04(2)(a)1. and chapter 128 of the Wisconsin Administrative Code.

The decision of the administrative law judge is affirmed in part and reversed in part. Accordingly, the employee is ineligible for benefits in weeks 10 of 2009 through week 26 of  2009 and is eligible for benefits as of week 27 of 2009, if otherwise qualified.

Dated and mailed February 25, 2010; Amended and mailed March 8, 2010
wrightc . urr : 145 : 6 AA 105

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

The commission did not discuss witness credibility and demeanor with the ALJ who held the hearing. The commission did not reverse the ALJ based on a different assessment of witness credibility and demeanor. Rather, the commission reversed the ALJ as a matter of law.

Note: The commission has modified its decision to make clear that the suspension imposed in week 10 of 2009 continues through week 26 of 2009.

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uploaded 2010/03/08