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

ERIC M WITT, Employee

REM WISCONSIN INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01005220MD


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 employee is ineligible for benefits beginning in week 35 of 2001, and until seven weeks have elapsed since the end of that week and he has earned wages in covered employment performed after that week equaling at least 14 times the weekly benefit rate which would have been paid had the discharge not occurred. He is required to repay $2,121 to the Unemployment Reserve Fund. The initial benefit computation (Form UCB-700), issued on August 28, 2001 is set aside. If benefit payments become payable based on other employment, a new computation will be issued.

Dated and mailed February 11, 2002
witter . usd : 135 : 8  MC 692.02   PC 732   BR 335.04 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

Laurie R. McCallum, Commissioner


MEMORANDUM OPINION

In his petition for commission review, the employee asserts that the unavailability of lost testimony on the hearing tape resulted in "extreme prejudice in forming an adequate response in the appeal tribunal decision" and therefore he requests that the commission vacate the appeal tribunal decision and schedule a new appeal hearing date. The employee's request is denied. The "lost" testimony was sufficiently retrieved by the ALJ during the hearing and did not prejudice either party or prohibit the ALJ from reaching a fair decision on the record. Additionally, the "lost" testimony concerned the employer's policy manual. While the intricacies of the employer's policy manual are somewhat relevant, the case does not hinge solely on the employer's policy manual.

The issue before the commission is whether the employee's failure to report the suspension of his license on July 20, 2001 constitutes misconduct. Even if the employer did not have a written rule prohibiting such conduct, the employee's omission nonetheless may still constitute misconduct within the meaning of the law. As the employee correctly notes, misconduct is not conduct that is isolated, inadvertent and unintentional. Moreover, the employee notes that the mere fact of having committed a prohibited civil offense does not necessarily constitute misconduct if it is found to be an inadvertent and isolated instance of poor judgment. The employee's recitation of the misconduct standard however fails to include that carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his employer constitutes misconduct. See, Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249 (1941).

Applying the misconduct standard held in Boynton Cab, the commission reaches the same legal conclusion as the ALJ reached. The employee either knew or should have known that his license was suspended sometime prior to coming to work on July 20, 2001. Despite this, the employee reported to work on July 20 and drove one of the employer's clients in a van. Under the circumstances, the employee's conduct exposed the employer to a needless, serious and entirely unjustified liability risk in case of an accident. As the ALJ noted, the conduct was grossly irresponsible and reflected an intentional and substantial disregard of the employer's interests thereby establishing misconduct. Although the employee characterizes his conduct as a mere inadvertency or an attempt to put the off duty morning accident behind him and work hard on July 20, his characterizations nonetheless do not support a reversal of the ALJ's decision

The employee also argues that he is not legally responsible for the overpayment since the cost of differing interpretations of the available information should not be placed on the employee but instead should be defrayed by the Department of Workforce Development since it is in the best position to monitor and screen unemployment compensation eligibility. Claimants however are aware of the potential for overpayment when filing an unemployment compensation claim. The employee's attempt to characterize the ALJ's reversal of the department's initial decision as a departmental error fails. Departmental error is defined under Wis. Stat. § 108.02(10e) and is defined as an error made by the department in computing or paying benefits which results in the mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake or 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 ALJ's reversal of the department's initial determination. The reversal was not based on department error as that term is defined in the statutes. Rather, the ALJ reached a different legal conclusion when applying the law to the evidence adduced at the hearing. The employee is therefore required to repay the overpayment despite his objections and legal interpretation of the law.

cc: Fernandez Giovanni


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uploaded 2002/02/18