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

MARK E DRAEGER, Employee

WINTERS DESIGN GROUP LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01603140MW


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:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked about six months as a carpenter's helper for the employer. His last day of work for the employer was March 9, 2001 (week 10). The employer's policy provides that when a worker leaves for lunch he is to call the office before he leaves and to call the office when he returns.

On March 9, 2001, the employee left work for lunch and never returned. Prior to leaving the employee expressed dissatisfaction with the task to which he was assigned and indicated he would rather be cutting wood. The employee gave no indication that he was leaving for the day and did not indicate that his back was bothering him. On March 9, the employer attempted to contact the employee approximately six times between 2:00 p.m. and 5:00 p.m. on his personal cell phone, on his employer-provided cell phone, and at his residence but only reached his answering machine and voice mail. The employer attempted to contact the employee on March 10 but was likewise unsuccessful.

The employee did not report for work on Monday, March 12, 2001, and did not contact the employer on that date. When the employee did not call in on Monday, March 12, the employer assumed that the employee quit and did not schedule him for further work. The employee called the employer on March 13, 2001, and the employer advised him that it had no work for him. On March 14, 2001 (week 11) the employer sent the employee a letter stating that he quit his employment by walking off the job on Friday and by failing to contact the employer until Tuesday.

The initial issue to be decided is whether the employee quit his employment or was discharged. The second issue is whether the employee is eligible for benefits based on the nature of the separation.

The commission finds that the employee voluntarily terminated his employment. The employee walked off the job site in the middle of the workday without notice that he would not be returning. The employee failed to call the office to indicate he was leaving the job site. The employee did not appear for work on Monday or notify the employer that he would be absent. The employee's actions were inconsistent with continuing his employment and constituted a quitting.

The employee maintained that he left work on Friday because his back was hurting. However, he told no one that his back was hurting. The employee gave no indication that he was leaving for the day and did not intend to return to work. Indeed, he told the lead carpenter that he was leaving for lunch. The reason the employer made multiple attempts to contact the employee at his residence was because the other workers reported the employee had failed to return to work. This is inconsistent with knowledge on the part of the employer and other workers that the employee's injury caused him to leave work for the day.

The employee maintained that he did not call in on Monday because it was raining and therefore no work would be available. However, given the fact that the employee walked off the job without notice on Friday he should at least have contacted the employer to verify that his services were not required.

The commission therefore finds that in week 11 of 2001 the employee voluntarily terminated his employment within the meaning of Wis. Stat. § 108.04(7)(a) and not for any reason constituting an exception to that section.

The commission further finds that the employee was paid benefits in the amount of $905.00 for weeks 11 through 15 of 2001, for which the employee was not eligible and to which the employee was not entitled, within the meaning of Wis. Stat. § 108.03(1).

The final issue to be decided is whether recovery of overpaid benefits must be waived.

Wisconsin Statute § 108.22(8)(c), provides that the department shall waive the recovery of overpaid benefits if the overpayment was the result of departmental error, and the overpayment did not result from the fault of the employee. Under Wis. Stat. § 108.02(10e)(a) and (b), department error is defined as an error made by the department in computing or paying benefits which results from a mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, or from misinformation provided to a claimant by the department, on which the claimant relied.

The overpayment in this case results from the commission's reversal of the appeal tribunal decision. Such reversal was not due to department error as defined in Wis. Stat. § 108.02(10e)(a) and (b). Rather, the commission has reached a different legal conclusion when applying the law to the facts found.

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c), because although the overpayment did not result from the fault of the employee as provided in Wis. Stat. § 108.04(13)(f), the overpayment was not the result of a department error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 11 of 2001, and until four weeks elapse since the end of the week of quitting and the employee earns wages in covered employment equaling at least four times the weekly benefit rate that would have been paid had the quitting not occurred. The employee is required to repay the sum of $905.00 to the Unemployment Reserve Fund.

For purposes of computing benefit entitlement: Base period wages from work for the employer prior to the discharge shall be excluded from any computation of maximum benefit amount for this or any later claim. If the employee was also paid base period wages from work by other covered employers, the excluded wages shall be used to determine benefit eligibility. However, any benefits otherwise chargeable to a contribution employer's account shall be charged to the fund's balancing account.

Dated and mailed July 31, 2001
draegma . urr : 132 : 1  VL 1007.05

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The commission did consult with the administrative law judge regarding his impressions of witness credibility and demeanor. The administrative law judge indicated that the employer's witnesses believed what they were testifying to but found their testimony internally inconsistent. The commission finds the testimony of the employer's witnesses to be credible. The employee's co-workers both testified that the employee did not report a back problem and did not indicate he was leaving for the day. The employee provided no credible explanation as to why the employer could not reach him for two days.

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will withhold benefits due for future weeks of unemployment in order to offset overpayment of U.I. and other special benefit programs that are due to this state, another state or to the federal government.

Contact the Unemployment Insurance Division, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the overpayment.


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uploaded 2001/08/06