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

STANLEY D GRUNEWALD, Employee

G G BARNETT TRANSPORT INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01608906WK


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 approximately six months, most recently as a sales manager, for the employer, a transportation business. His last day of work was April 10, 2001 (week 15).

On April 2, 2001, the employee was not feeling well. He reported to the emergency room and learned that he had some medical conditions that he had to address. On April 10, 2001, he met with the employer and was informed that he was to assume a new position as an office coordinator. The employee explained that his health would not allow him to change jobs at that time. He then requested a medical leave. The employer explained that its work rules provided that workers were only eligible for family or medical leave if they worked for the employer for at least one year and, in light of his having worked only six months for the employer, he could not take such a leave.

On April 16, 2001 (week 16), the employee requested a 60-day leave of absence. The employer explained that the employee did not qualify for a leave because he had not worked for the employer for one year. The employer asked the employee if he wanted to continue his sales work or work inside the office and not do so much over-the-road sales. The employee indicated that he was not able to do that. The employee questioned whether he could retain insurance coverage. The employer informed him that the only way to retain coverage was under COBRA, and he had to voluntarily terminate his employment. The employee indicated he would do that because he was unable to work. On that date he executed an agreement which made the continuation of group health coverage available to him because of the employee's termination of employment or loss of eligibility due to reduced hours on April 10, 2001. The employee received no assurance that he would be offered work in the future.

The initial issue is whether in week 16 of 2001 the employee's employment ended due to a quitting by the employee or a discharge by the employer.

The employee maintained that he did not quit his employment, but instead was on a leave of absence granted by the employer. The commission does not find the employee's claim credible. The employer previously advised the employee that no leave was possible because he had not been with the employer long enough. The employee signed the COBRA documentation which was consistent with a separation from employment. The employee's claim that he believed he was eligible for COBRA due to a reduction in hours is not persuasive. There was no discussion between the parties of the employee qualifying under COBRA based on a reduction in hours. The employer did not assure the employee that he would be permitted to return to his former or another position.

The second issue is whether the employee's quitting meets any statutory exception to the quit disqualification found in Wis. Stat. § 108.04 (7)(a). The most relevant statutory exception in this case can be found in Wis. Stat. § 108.04(7)(c). Wis. Stat. § 108.04(7)(c) permits an employee to voluntarily terminate employment in the case of health problems which make continued employment impossible, where the employee has pursued and exhausted reasonable alternatives short of quitting, but only where the employee remains generally able to work and available for work after quitting.

The employee's separation was caused by his belief that he could not perform work available to him due to his health. However, the employee did not establish that he was advised by a doctor to quit his employment. The employee did not present any medical evidence at the hearing that he was unable to continue his work and had no alternative but to quit his employment with the employer. The employee did not meet his burden of establishing that he quit his employment for any reason that would permit the immediate payment of unemployment insurance benefits.

The commission therefore finds that in week 16 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 $4,069.00 for weeks 24 through 31 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).

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 16 of 2001, and until four weeks elapse since the end of the week of quitting and the employee has earned wages in covered employment equaling at least four times the weekly benefit rate which would have been paid had the quitting not occurred. The employee is required to repay the sum of $4,069.00 to the Unemployment Reserve Fund.

Dated and mailed July 26, 2002
grunest . urr : 132 : 1 : VL 1001.06 VL 1007.01 VL 1023.10  PC 714.10 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

MEMORANDUM OPINION

The commission did discuss witness credibility and demeanor with the ALJ who presided at the hearing in this matter. The ALJ indicated that he found the employee and his wife more credible than the employer with regard to whether a leave had been granted. For reasons set forth above, the commission disagrees with the ALJ's credibility assessment.

The commission notes that its rules provide, at Wisconsin Admin. Code § LIRC 1.04, that review by the commission is on the record of the case including the synopsis or summary of the testimony or other evidence presented at the hearing. The law requires that the commission's review be based solely on the testimony and documents presented at the hearing before the ALJ. For this reason, the commission cannot consider factual assertions made in the petition for review, or documents submitted with the petition for review, which were not also made or submitted at the hearing. Since the commission's review must there fore be based on the evidence submitted at the hearing which has already been held, the commission will not address or consider the factual assertions made by the parties which are not supported by the record.

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will with hold benefits due for future weeks of unemployment in order to off set over payment of U.C. and other special benefit programs that are due to this state, an other 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 over payment.


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uploaded 2002/07/26