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


KAREN A BIBY, Employe

EMPIRE LEVEL MFG CORP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98606061MW


On August 29, 1998, the Department of Workforce Development issued an initial determination which held that the employe suspended her employment because she was unable to do suitable work otherwise available with the employer. The employer filed a timely request for hearing, and hearing was held on September 23, 1998 in Milwaukee, Wisconsin before a department administrative law judge. On October 8, 1998, the administrative law judge issued an appeal tribunal decision affirming the initial determination. The employer filed a timely petition for commission review and, by February 26, 1999 order, the commission remanded the matter for further hearing. The matter is again before the commission, and now is ready for disposition.

Based upon the applicable law and the records and other evidence in the case, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked approximately four years as a general laborer for the employer, a hand tool manufacturer. Her last day of work was July 13, 1998 (week 29), when her employment was suspended because she was unable to continue working in the environment in question. The issue is whether the suspension of the employe's work was such that she remained eligible for unemployment insurance. The commission concludes that it was not, and so reverses the appeal tribunal decision.

On July 14, 1998, the employe took leave pursuant to the Family and Medical Leave Act. Her doctor had recommended that the employe not work for the employer because of her asthma. The area in which the employe worked had no climate-controlled atmosphere, and the employe's condition prevented her from being able to work in heat exceeding 80 degrees Fahrenheit. Although the employer had one work area with climate control, no work in that area was available for the employe. Finally, the employer had told the employe she could not return to work for the employer unless she received a release from her doctor to that effect.

Wisconsin statute § 108.04(1)(b)3 states that an employe is ineligible for benefits while the employe is on family or medical leave under the Federal Family and Medical Leave Act of 1993 (P.L. 103-3) or Wis. Stat. § 103.10 (until certain events occur, none of which occurred here). Since the employe was on medical leave pursuant to this section of the statutes, she is ineligible for unemployment insurance while on that leave.

The commission therefore finds that, in weeks 29-39 of 1998, the employe was on medical leave pursuant to Wis. Stat. § 108.04(1)(b)3 and therefore ineligible for unemployment insurance in those weeks. The commission also finds that the employe was paid unemployment insurance in the amount of $214 per week for each of weeks 29-30 and 34-39 of 1998, totaling $1,712, for which she was ineligible and to which she was not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. 108.22(8)(a), she must repay $1,284 of that amount to the Unemployment Reserve Fund. The employe is not required to repay the $428 in unemployment insurance she received for weeks 29-30 of 1998, as those monies were paid due to department error. See Wis. Stat. § 108.22(8)(c). Specifically, the administrative law judge resolved the issue of the employe's eligibility for unemployment insurance under the general work suspension statute, Wis. Stat. § 108.04(1)(b)1, rather than under the statute more directly applicable, Wis. Stat. § 108.04 (1)(b)3.

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is ineligible for unemployment insurance in weeks 29-39 of 1998. She must repay $1,284 to the Unemployment Reserve Fund.

Dated and mailed June 22, 1999
bibyka.urr : 105 : 6  AA 240 BR 335.01

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision in this matter. The commission's reversal is not based upon a differing credibility assessment from that made by the administrative law judge. Rather, the commission's reversal is based upon its use of a different statutory section, as indicated above.


cc: EMPIRE LEVEL MFG CORP

ATTORNEY MICHAEL J FISCHER
QUARLES & BRADY


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