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

ANGELA K BROWN, Employee

NURSING CENTERS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04604108MW


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 during about eight months as a certified nursing assistant for the employer, an operator of a medical staffing business. Her last day of work was May 3, 2003 (week 18). She initiated a valid new claim for benefits in week 8 of 2004, the calendar week ending February 21.

In week 13 of 2004, the calendar week ending March 27, the employee was contacted by the employer concerning three positions. She resides in Racine, Wisconsin. Two of the positions were in Milwaukee and one was in Madison. She would have had to have driven about 32 miles to the job in Milwaukee and 107 miles to the job in Madison. Because she had not been called on for work by the employer for many months and in fact had been told after her last day that she would not be scheduled, she had not updated her Tuberculosis or her Measles, Mumps and Rubella vaccinations. When called for the assignments, she was unable to work for that reason. In her labor market, workers similarly employed and earning $12 per hour, the wage paid for the work, travel up to about 15 miles to get to a job. She was not placed in any of the assignments. She has medical limitations that impact her ability to move about and lift. As a result, she in capable of performing about 5 percent of the suitable work in her locality.

The first issue to be decided is whether the employee failed to accept an offer of work and, if so, whether good cause existed for failing to accept that offer.

Wisconsin Statute § 108.04(8), provides that a worker who refuses suitable work without good cause will have her benefit eligibility suspended until four weeks have elapsed since the week of the suspension and until the worker earns wages in covered employment of four times the applicable weekly benefit rate.

There is a question as to whether there was a bona fide offer of work because the employee was not qualified to do the work because of the immunization problem and, while she was contacted about the work, it was not in the end offered to her. Moreover, the travel distance involved precludes the suspension of benefits as the distance was far greater than what workers similarly employed customarily travel and amounts to good cause.

Had the employee refused the work with good cause, under Wis. Stat. § 108.04(8)(e), she would have had to then be available for work. Although the ultimate finding is that she did not refuse work, under Wis. Stat. § 108.04(2)(a), she must still be available for work. Wis. Stat. § 108.04(2)(a), provides that a worker who earns no wages in a given week must be available for work in order to be eligible for benefits. Chapter DWD 128 of the Wisconsin Administrative Code implements that statutes and provides that a claimant who, without good cause, limits her opportunities to less than 50 percent of the suitable full-time jobs in the locality or whose physical condition or personal circumstances over which the claimant has no control limit the claimant to less than 15% of the opportunities for suitable work in the claimant's labor market area will not be available for work.

The employee is able to perform only 5 percent of the suitable jobs in her locality. She is not available for work and not eligible for benefits as of the time of hearing in week 22 of 2004, the calendar week ending May 29. Under Chapter DWD 128, absent a showing of concealment, there is no retroactive disqualification.

The commission therefore finds that in week 13 of 2004, the employee did not fail to accept an offer of suitable work, within the meaning of Wis. Stat. § 108.04(8)(a).

The commission further finds that as of week 22 of 2004, the employee was not available for work, within the meaning of Wis. Stat. § 108.04(2)(a) and Wis. Admin. Code ch. DWD 128.

The commission further finds that the employee was paid benefits in the amount of $156.00 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. 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 takes administrative notice of department procedures that are to be followed when an appeal tribunal reverses an initial determination that allowed benefits. Department procedures dictate that the appeal tribunal notify the department's non-automated claims section that a "hold" should be placed on the employee's claim so that benefits to which the employee is not entitled are not mailed to the employee. In this case, the file reflects that the ALJ did not notify non-automated claims that the employee would be found ineligible for benefits for week 22 of 2004. As a result, after the May 28, 2004, decision was issued a check was mailed to the employee for week 22 of 2004 on June 1, 2004, in the amount of $156.00. Had a hold been timely placed on the employee's claim, the employee would not have erroneously been paid benefits for week 22 of 2004.

The overpayment in this case results from department error as defined in Wis. Stat. § 108.02(10e)(a) and (b).

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. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The decision of the administrative law judge is modified to conform to the foregoing findings and, as modified, is affirmed in part and reversed in part. Accordingly, the employee is eligible for benefits in weeks 13 through 21 of 2004, if otherwise qualified. She is ineligible for benefits as of week 22 of 2004, and until she is available for work. The employee is not required to repay the sum of $156.00 to the Unemployment Reserve Fund. Department records reflect that the employee's benefit suspension was lifted as of week 26 of 2004.

Dated and mailed August 20, 2004
brownan . urr : 132 : 1 : BR 335.03

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner



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