BARBARA A BLAWAT, Employee

PERSONNEL SPECIALIST LTD, Employer

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.

The decision of the administrative law judge is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 29 of 2000, and until four weeks have elapsed since the end of the week of quitting and the employee has earned wages in covered employment performed after the week of quitting equaling at least four times the employee's weekly benefit rate which would have been paid had the quitting not occurred. The employee is required to repay the sum of $4,452 to the Unemployment Reserve Fund.

Dated and mailed April 4, 2002
blawaba . usd : 105 : 8  BR 335.04  PC 734 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

The employee first asserts in her petition that she did not quit her employment with the employer only due to the car accident she was in, that she also was pursuing work opportunities in Racine County. The precipitating factor for the separation from employment, though, must be held to have been the car accident, since the employee would not have ceased working for the employer when she did, had the car accident not occurred.

The employee next challenges the administrative law judge's finding that the employee falsely answered the question about quitting a job. The commission must agree with the administrative law judge, though, that that is what the employee did. With regard to week 29 of 2000 (the week ending July 15), for example, the employee testified that she did not know why she had responded "no" to the question whether she had quit a job. The commission does not impute fraudulent intent to the employee. It remains the case, though, that waiver of recovery of a benefit overpayment is allowed only when it is only departmental error which causes the overpayment. That is, even if an overpayment is due in part to departmental error, where the overpayment also was due to the provision by an employee of incorrect information, even if only by mistake, then there can be no waiver of recovery of the overpayment.

The employee asserts, finally, that valuable information she gave at the previous hearing in this case, was overlooked by the administrative law judge. The commission's order specifically indicated, though, that there was to be a new hearing and decision in the case. In this scenario, evidence from previous hearings is not considered. It therefore was the employee's obligation to introduce at the subsequent hearing all evidence she wished the administrative law judge to consider when issuing the second decision on the merits. The employee requests another hearing, preferably in the afternoon. The employee has not indicated sufficient reason to justify yet another hearing in this case. Parties are instructed that the review by the commission is a review of the record made before the administrative law judge and that the hearing before the administrative law judge will be their only opportunity to present evidence.

For these reasons, and for those stated in the appeal tribunal decision, the commission has affirmed that decision.

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uploaded 2002/04/19