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

JASON W BLANK, Employee

DEERFOOT LODGE & RESORT INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03200018EC


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 three months as a maintenance worker for the employer, a resort business. His last day of work was June 23, 2002 (week 26).

The issues to be decided are whether the suspension of employment by the employee or suspension or termination by the employer was because the employee was unable to do or unavailable for, any suitable work available with the employer and if so, whether the employee was able to work and available for work in the labor market at the time the claim for unemployment benefits was initiated.

On the last day of work, the employee injured his shoulder. He saw a doctor who restricted him to light duty work. When he contacted the employer's business, he was informed that he would not be allowed to return to work until he was released to work without restrictions. The employee continued to be restricted to light-duty work. After the calendar week ending September 7, 2002 (week 36), the employer had no work available for the employee, regardless of any work restrictions that the employee had.

The employer contended that the employee had voluntarily terminated his employment. However, this contention cannot be sustained. A quitting occurs when a worker intends to leave his or her employment and indicates that intention by word or manner or action, or by conduct that is inconsistent with a continuation of the employment relationship. In this case, the employee did not intend to terminate his employment relationship. He notified the employer of his work restrictions and maintained contact with the employer about returning to work. The employer determined that there was no work available for the employee. As such, the employer suspended his employment because he was physically unable to do work otherwise available with the employer.

The statutes provide that a claimant is not eligible for benefits unless able to work and available for work. The Wisconsin Administrative Code implements the statutes and provides that a claimant will not be considered able and available if he or she, without good cause, restricts him or herself to less than 50 percent of the full-time opportunities for suitable work in the labor market, if his or her physical condition or uncontrollable circumstances limit him or her to less than 15 percent of the opportunities for suitable work in the labor market, or if he or she, without good cause, fails to participate in an eligibility review interview.

In a certified medical report, the employee's doctor indicated that the employee was restricted to light-duty work. He also indicated that the employee was to avoid crawling and to limit stooping, crouching and kneeling to an occasional basis. The employee was to avoid prolonged work at arm's length and to limit reaching to one-third normal ability. The doctor also restricted the employee to working no more than 29 hours per week. The doctor imposed these restrictions as of November 25, 2002 (week 48).

On February 25, 2003 (week 9), the employee saw another doctor who restricted him to light-duty work. He also restricted the employee from overhead work with his right arm, as it was the right shoulder that had been injured. He had no restrictions imposed on his left arm or shoulder. The second doctor did not impose any restrictions regarding work hours.

The employee has had work experience as a maintenance worker, bartender, cook, television camera operator, radio station deejay, cashier, casino vault worker, and assembler. He graduated from high school and attended vocational school in television production.

Based upon the best available evidence adduced at the hearing, the restriction imposed by the doctor as of November 25, 2002 (week 48), restricted the employee to 10% of the suitable work in the labor market. The employee presented a medical report from a second doctor indicating that based on an examination on February 25, 2003 (week 9), the employee was able to perform full-time work. As a result, he was able to perform 49% of suitable work in his labor market. The employee was therefore able to work as of the date of such opinion, February 25, 2003 (week 9).

The commission therefore finds that in week 36 of 2002, the employee's employment was suspended by the employer because he was unable to do suitable work otherwise available with the employer, within the meaning of Wis. Stat. § 108.04(1)(b)1., and that he was unable to perform suitable work in his labor market in weeks 36 of 2002 through week 8 of 2003, but as of week 9 of 2003 he was able to work and available for work on the general labor market, within the meaning of that section.

The commission further finds that the employee was paid benefits in the amount of $2,670.00 for weeks 49 through 52 of 2002, and weeks 1 through 5 of 2003, 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 ALJ allowed benefits as of week 49 of 2002, based on the finding that the employee saw a doctor in that week. The medical report submitted by the employee established that such examination occurred three months later. Accordingly, the commission finds that benefits were paid based on 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), but was the result of a department error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The decision of the administrative law judge is modified to conform with the foregoing and, as modified, is affirmed in part and reversed in part. Accordingly, the employee is ineligible for benefits in week 36 of 2002 through week 8 of 2003. He is eligible for benefits as of week 9 of 2003, if he is otherwise qualified. The employee is not required to repay the sum of $2,670.00 to the Unemployment Reserve Fund.

Dated and mailed August 20, 2003
blankja . urr : 132 : 1 : BR 335.02

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner



MEMORANDUM OPINION

The commission did not consult with the ALJ regarding witness credibility and demeanor. The commission's reversal is not based on a differing impression of credibility or demeanor.

 


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uploaded 2003/08/25