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

DAVID R WOJAHN, Employee

QUALITY ELECTRIC SERVICE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04401687OS


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 for five months repairing motors for a business that sells and repairs electric motors. His last day of work was January 14, 2004 (week 3). The employee pled no contest to drunk driving and was incarcerated in Winnebago County jail shortly after his last day of work.

The employer was willing to retain the employee if he got Huber privileges at the jail. Since the employer is in Milwaukee County, the employee sought a transfer to an adjacent county and was accepted in Washington County. However, since the employee could not drive, he needed to arrange transportation to the employer's work site. The employer forwarded a bus schedule to the jail which would bring the employee to its site. The jail rejected the bus and insisted that the employee must be personally picked up and returned to the jail. The employee was unable to arrange other transportation. The employer gave the employee until February 13, 2004 (week 7) to return to work or the employer would hire a replacement. The employee did not return to work for the employer and the employer filled the employee's position shortly before the employee's release in March.

The issue is whether the employee quit or was discharged and whether the separation was for any reason permitting the immediate payment of benefits.

The commission concludes that the employee quit his employment when he failed to return to work due to lack of transportation. The employee abandoned his job because he could not get there. The employer did not object to the employee's incarceration but to his failure to appear for work. The employee was eligible for work release privileges if he could arrange transportation to the employer's location which would satisfy the jail. He was unable to arrange suitable transportation and his job ended. Therefore, the commission finds that the employee quit when he abandoned his job after failing to secure transportation to work.

The commission therefore finds that in week 7 of 2004, the employee terminated his work with the employing unit, within the meaning of Wis. Stat. § 108.04(7)(a), and that this quitting was not for any reason constituting an exception to that section.

The commission further finds that the employee was paid benefits in the amount of $4,277 for weeks 12 through 25 of 2004; for which he was not eligible and to which he was not entitled, with in the meaning of Wis. Stat. § 108.03 (1), and pursuant to Wis. Stat. § 108.22 (8)(a), he is required to repay such sum to the Unemployment Reserve Fund.

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 overpayment in this case results from the commission's reversal of the appeal tribunal decision. Such reversal was not due to department error as defined in Wis. Stat. § 108.02(10e)(a) and (b). Rather, the commission has reached a different legal conclusion when applying the law to the facts found.

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c), because although the overpayment did not result from the fault of the employee as provided in Wis. Stat. § 108.04(13)(f), the overpayment was not the result of a department error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The appeal tribunal decision is modified as to the week of issue and reversed. Accordingly, the employee is ineligible for benefits beginning in week 7 of 2004, 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. He is required to repay $4,277 to the Unemployment Reserve Fund.

Dated and mailed October 27, 2004
wojahda . urr : 178 : 1 VL 1015.01

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner



MEMORANDUM OPINION

The commission did not consult with the ALJ regarding witness credibility and demeanor. The commission accepts the facts found by the ALJ but reaches a different legal conclusion when applying the law to the facts.

 

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will with hold benefits due for future weeks of unemployment in order to off set over payment of U.C. 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:
Charles H. Armitage
Attorney Joseph J. Manske


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uploaded 2004/11/15

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