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


MARY T MOSGALLER, Employe

TWO RIVERS COMMUNITY HOSPITAL INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99400648MN


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 employe is ineligible for unemployment benefits beginning in week 7 of 1999, and until she is able to work and available for work.

Dated and mailed June 24, 1999
mosgama.usd : 105 : 3  AA 240 AA 253

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The employe's situation is unfortunate, but the administrative law judge (and the commission) can only apply the laws governing the unemployment insurance claim. In this case, despite the valid reasons for the quit, the statute still requires that the employe be able to work at at least 15 percent of the suitable work in her labor market area despite any medical restrictions she has. This is a general eligibility requirement which all claimants must meet, except in very limited circumstances not applicable here. The minimum ability to work requirement is 15 percent, though, and the employe's medical restrictions render her able to perform only approximately three percent of the suitable work in her labor market. For this reason, Wis. Admin. Code § DWD 128.01 (2) disqualifies the employe from unemployment insurance eligibility in any weeks in which she is totally unemployed.

The matter may be different with respect to weeks in which the employe is only partially unemployed, however. Wis. Admin. Code § DWD 128.01 (5) states essentially that the 15 percent ability to work requirement does not apply to partially unemployed individuals unless "there is some definite indication that the claimant is not genuinely interested in working full time." Assuming the employe is otherwise qualified, therefore, she will be eligible for unemployment insurance in weeks after the quit in which she is only partially unemployed, unless there is a definite indication that she is not interested in working full time.


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