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

KRISTY C LYTIE, Employee

NAOMI J WENDORF, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 10401877AP


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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the claimant is ineligible for benefits in weeks 15 through 20 of 2009. The claimant is required to repay the sum of $738.00 to the Unemployment Reserve Fund.

Dated and mailed October 28, 2010
lytiekr : 150 : AA 200 ; AA 240

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The employee was collecting benefits after being laid off from work in week 4 of 2009. On Wednesday, April 8, 2009 (week 15) she gave birth to a child via Caesarean section. She was in the hospital for three days. She was on pain medication for a week. She filed for and received benefits for weeks 15 through 20, claiming that she was able and available for work each week. Although she was provided a medical form for her doctor to complete regarding her ability to work and availability to work, she did not return it.

The initial determination and appeal tribunal decision denied benefits for weeks 15 through 20 and the employee petitioned the matter to the commission arguing that she was able to work and available for work.

Wis. Stat. § 108.04(2) requires that a worker be able to work and available for work. Wisconsin Administrative Code § § DWD 128.01(1) and (2) "Able to work and available for work," provides:

(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 s. 108.04 (1) (b), (7) (c), and (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 127.

When the employee had the surgery, the presumption of being able to work was no longer in effect. It created the situation whereby the employee has the burden to establish that she was A&A. The employee had the opportunity to submit medical documentation to support her claims but did not do so.  Like the ALJ, the commission does not credit her assertions without such medical documentation. The appeal tribunal decision is affirmed as written.


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