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

BARBARA J FUHRMANN, Employee

UNIVERSITY OF WISCONSIN OSHKOSH, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03404552AP


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 in weeks 1 through 20 of 2003. The employee is required to repay the sum of $3,380.00 to the Unemployment Reserve Fund.

Dated and mailed June 9, 2004
fuhrmba . usd : 145 : 1   BR 346

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

In her petition for commission review the employee asserts that the employer failed to provide retraining benefits to the employer despite the fact that she was clearly eligible to receive those benefits during the period in question. The employee was forced to hire an attorney in order to receive the benefits to which she was entitled. As a result, the employee did not receive the full amount of retraining benefits because she was required to pay her attorney 20 percent of those benefits. However, Wis. Stat. § 108.04(12)(e) provides that an employee is ineligible for unemployment insurance payments when the employee receives temporary total disability for a whole week regardless of the amount of the payment. The commission simply does not have the statutory authority to waive the employee's overpayment or a percentage of the overpayment because the employee was not treated fairly by the employer.

The employee further asserts that the vocational retraining benefits that the employee received pursuant to Wis. Stat. § 102.61 are not temporary total disability or temporary partial disability. The employee asserts that Neal & Danas, Ch. 5, page 3; March 2003, State Bar of Wisconsin CLE books, indicates that temporary disability refers to wage loss during the healing period. The employee states that she was no longer in her healing period. This argument has some logical appeal in that the applicant must have permanent restrictions to be eligible for vocational rehabilitation. However, if "the employee enrolls in a course of retraining, then the employee is entitled to temporary disability benefits for at least the first 80 weeks of the retraining period. See Wis. Stat. § § 102.43(5), .61(1)." Neal & Danas, Ch. 5, page 29. Finally, the commission concluded that Vocational Rehabilitation Payments are considered temporary total disability under Wis. Stat. § 108.04(12)(e). See Jadowski v. William A. Hein Construction Co. Inc. Hearing No. 94602256MN, (LIRC, November 10, 1994). The department subsequently changed its policy and now considers vocational rehabilitation benefits to be temporary total disability payments, and accordingly amended its UI Benefits Manual. UC Trans, 2-95 (2/14/95.) Finally, Wis. Stat. § 102.43(5) specifically provides that "temporary disability shall also include such period as the employee may be receiving instruction pursuant to § 102.61(1) or (1m)."

cc: Attorney John B. Edmondson

 


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