DENNIS D BJUGSTAD, Employee

XEROX CORP, 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, except that it makes the following modifications:

Delete the eighth paragraph under the administrative law judge's Findings of Fact and Conclusions of Law and insert therefor:

"The commission further finds that the employee was paid benefits in the amount of $3,240.00, 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 employer did not respond to the department's request for information on the separation. The initial determination was based on a statement the employee gave to a department adjudicator. The employee told the adjudicator:

"I was a DMSI coordinator, but they eliminated that position and I went back to being an account coordinator. My pay rate was $12.60 per hour when I was a DMSI Coordinator. I started working there in November of 1998. They changed my position from DMSI to regular account coordinator around January of 2001. I then was receiving about $1.00 less per hour. I last worked there on 3/14/02."

Exhibit 2.

The initial determination found the employee quit work with good cause attributable to the employer. The initial determination stated:

"The employe's position and pay rate were changed prior to the termination. The employe worked under the changed conditions for less than 10 weeks. The pay rate for the most recent position was substantially less favorable than the wage paid for other work."

The department adjudicator found that the employee quit work within 10 weeks of his demotion, although the employee had apprised the adjudicator that the demotion occurred more than a year earlier. The commission finds that benefits were paid due to a mistake of evidentiary fact.

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

Delete the third sentence in the administrative law judge's decision paragraph and insert therefor:

"The employee is not required to repay the sum of $3,240.00 to the Unemployment Reserve Fund."

Delete the note following the administrative law judge's signature.

The decision of the administrative law judge, as modified, is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 11 of 2002, and until four weeks have elapsed since the end of the week of quitting and he has earned wages in covered employment performed after the week of quitting equaling at least four times his weekly benefit rate which would have been paid had the quitting not occurred. The employee is not required to repay the sum of $3,240.00 to the Unemployment Reserve Fund.

Dated and mailed August 30, 2002
bjugsde . umd : 132 : 8   BR 335.02

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

The employee has petitioned for commission review of the adverse appeal tribunal decision that found he voluntarily terminated his employment but not for any reason permitting immediate benefit payment. The employee maintains in his petition that he had good cause to quit based on his demotion. However, that demotion occurred a year and a half prior to his decision to quit. The law does provide for benefit eligibility in certain circumstances if an employee quits due to a change in working conditions, however, the employee must make the decision to quit within ten weeks of such change. See Wis. Stat. § 108.04(7)(e).

cc: Xerox Corp. - Madison, WI 53713

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uploaded 2002/09/06