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

LAWRENCE M MELTESEN, Employee

DEPARTMENT OF HEALTH & FAMILY SERVICES, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04000220MD


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 has worked for the employer for about two and a half years as a psychiatric care technician at the employer's Sand Ridge Secure Treatment Center. On November 16, 2003 (week 47), the employee injured his ankle, which rendered him temporarily unable to perform his job. The employee was off of work during weeks 47 and 48 due to his injury. On November 25 (week 48) the employer sent the employee paperwork to request FMLA leave. On December 15 (week 51) the employee submitted an FMLA request form, on which he stated that his anticipated dates of leave were December 15 through December 30. The employer changed the return date to January 16 (week 3), the date on which the employee's doctor indicated the employee's restrictions would expire and the employee would be reevaluated, and notified the employee that his request for FMLA leave was granted. As of the date of the hearing, February 9, 2004, the employee had not returned to work.

An employee is ineligible for UI benefits while he is on a family or medical leave under either the federal or state FMLA. See Wis. Stat. § 108.04(1)(b)3. The question to decide is whether the statutory disqualification applies and in what weeks.

The appeal tribunal found that the employee's FMLA leave was limited to the two weeks he originally requested on his FMLA paperwork. However, the dates requested by the employee do not control the outcome of this case; what matters is when the FMLA leave actually occurred. Where an employee takes an extended medical leave of absence under conditions which remain the same throughout the course of the leave, his FMLA leave should be deemed to begin at the onset of the leave. Wojtalewicz v. The Copps Corp. (LIRC, Sept. 14, 2001). Here, the employee began his leave on November 17, 2003, in spite of the fact that he did not submit paperwork until December 15. Moreover, while the appeal tribunal found that the leave of absence ended on December 30, 2003, the last day requested by the employee, the record indicates that the employee continued on the same leave of absence beyond that date and into 2004, irrespective of the dates originally indicated on his paperwork.

The commission, therefore, finds that beginning in week 47 of 2003, the employee was on a medical leave pursuant to Wis. Stat. § 108.04(1)(b)3. He is therefore ineligible for benefits as of that week and until the leave is exhausted or he returns to work.

The commission further finds that the employee was paid benefits in weeks 49 and 50 of 2003 and weeks 1 through 5 of 2004 in the total amount of $2,198, for which he was not eligible and to which he 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. Wis. Stat. § 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 commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c), because 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 affirmed in part and reversed in part. Accordingly, the employee is ineligible for benefits beginning in week 47 of
2003, and until the leave is exhausted or he returns to work. He is required to repay the sum of $2,198 to the Unemployment Reserve Fund.

Dated and mailed June 29, 2004
meltela . urr : 164 : 1  VL 1023.15

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


NOTE: The commission did not confer with the appeal tribunal about witness credibility. The commission's reversal of the appeal tribunal decision is as a matter of law.

The department will with hold benefits due for future weeks of unemployment in order to off set over payment of UI 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.


cc: Department of Health & Family Services (Mauston, Wisconsin)


[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]


uploaded 2004/07/02