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


DENNIS R WALSH, Employe

TOM A ROTHE SC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99401767AP


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 27 of 1999, and until the employe is able to work and available for work. The employe is required to repay the sum of $297.00 to the unemployment Reserve Fund.

Dated and mailed February 15, 2000
walshde.usd : 132 : 1   AA 105

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The employe has petitioned for commission review of the adverse appeal tribunal decision which found that the employer terminated the employe's employment because he was unable to perform suitable work otherwise available and was not able to work in at least 15 percent of the suitable jobs on his labor market. The commission has reviewed the record in this matter and agrees with the appeal tribunal's Findings of Fact and Conclusions of Law. The employe's argument regarding the separation is that since the law requires an employer to make reasonable accommodations, there was suitable work available to the employe if such reasonable accommodations had been made. However, this is not the forum in which to make such an argument. There is no requirement under the unemployment insurance law, in order to find that suitable work is not available, that the employer first attempt to make a position available by modifying the duties of the job.

The law does provide for a temporary grace period for claimants with uncontrollable restrictions. Under Wis. Admin. Code § DWD 128.02, three conditions must be met for the employe to receive a grace period from the requirement that he be able to work. First, a physical/psychological condition or personal circumstance beyond his control must limit the employe to less than 15 percent of suitable jobs in his labor market. Second, the employe must be able to work and available for work under the same conditions which applied to him in his most recent period of employment. Third, the employe's recent separation from work must be due to a layoff or termination of the employment relationship unrelated to the physical/psychological condition or personal circumstances. In this case, the employe meets the first two conditions, but not the last. The fact is that the employe's separation from employment was related to his physical condition.

For the above reasons, and for the reasons set forth in the appeal tribunal decision, the commission affirms that decision.

cc: ATTORNEY DANIEL M MUZA
REFF BAIVIER BERMINGHAM ZIERDT & LIM SC

ATTORNEY ANDREW J PHILLIPS
YAKES BAUER KINDT & PHILLIPS SC


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