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

KAREN E STENGLE, Employee

WAUSAU MOSINEE PAPER CORP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04201204WU


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 about 12 years, as a maintenance worker, performing electrical work for the employer, a paper manufacturing business. Her last day of work was March 26, 2004 (week 13).

The employee has been diagnosed as suffering from Reactive Airways Dysfunction Syndrome (RADS). The condition is prompted by exposure to sulfur dioxide. She suffers from asthmatic symptoms when in contact with that chemical compound. Release of sulfur dioxide is a feature of paper manufacturing. The employee, during the last several years of her employment, developed the RADS condition referred to above. The employer assigned her, on a temporary basis, to a work location where contact with sulfur dioxide would be limited. However, once it received a report from the employee's physician that the condition was permanent, it concluded that it could not continue in this assignment without violating seniority provisions of the employer's collective bargaining agreement with the employee's union. Because of this, the employee's employment was suspended as of March 26.

The employee's inability to work in contact with sulfur dioxide would not be so restrictive as to render her unavailable to perform as much as 15% of otherwise suitable jobs in her labor market. Accordingly, as of the time of the suspension, she remained able to work and available for work.

On April 21, 2004 (week 17), the employer notified the employee and the department that the employee was placed on FMLA leave. The department confirmed with the employee on April 23, that she was on FMLA leave. The leave was to be retroactive to March 27, 2004. Accordingly, the FMLA leave would expire on June 19, 2004 (week 25), in accordance with FMLA duration requirements. The commission has no reason for concluding that FMLA status was inappropriately established. This is a disqualifying condition under Wisconsin's Unemployment Insurance Law.

The commission has in the past indicated that where an employee takes an extended medical leave of absence under conditions which remain the same throughout the course of the leave, the FMLA leave should be deemed to begin at the onset of the leave. See Meltesen v. Department of Health & Family Services, UI Dec. Hearing No. 04000220MD (LIRC June 29, 2004); Wojtalewicz v. The Copps Corp., UI Dec. Hearing No. 01002416WR (LIRC Sept. 14, 2001). The commission concludes that, for purposes of unemployment insurance, the employee was on FMLA leave as of March 27, 2003.

The commission therefore finds that in weeks 13 through 25 of 2004 the employee was on FMLA leave, within the meaning of Wis. Stat. § 108.04(1)(b)3.

The commission further finds that the employee was paid benefits in the amount of $2,632.00 for weeks 14 through 21 of 2004, 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), departmental 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, by commission or omission, or from misinformation provided to a claimant by the department, on which the claimant relied.

The overpayment for weeks 14 through 16 of 2004 was not due to departmental error. However, the overpayment for weeks 17 through 21 of 2004 was caused by the department's failure to issue a new determination suspending benefits based on the parties' agreement that the employee was on FMLA leave. Instead of issuing a new determination, the department treated the employer's information that the employee was on FMLA leave as an appeal to the determination that found her employment was suspended in week 13 of 2004. The department failed to apply the provision that would result in the suspension of benefit eligibility as it is required to do by law. See Wis. Stat. § 108.09(2)(b). The commission finds that such failure constituted departmental error.

The commission further finds that waiver of benefit recovery of $987.00 for benefits paid for weeks 14 through 16 of 2004 is not required under Wis. Stat. § 108.22(8)(c), because although the overpayment did not result from the fault of the employe 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.

The commission further finds that waiver of benefit recovery of $1,645.00 in benefits paid for weeks 17 through 21 is required under Wis. Stat. § 108.22(8)(c), because the overpayment did not result from the fault of the employee or the employer 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 reversed. Accordingly, the employee is ineligible for benefits in weeks 13 through 25 of 2004. The employee is eligible for benefits thereafter, if she is otherwise qualified. As a result of this decision, the employee will be due a refund of $1,645.00 withheld previously to satisfy the overpayment amount set forth in the appeal tribunal decision.

Dated and mailed December 29, 2004
stengka . urr : 132 : 1 : AA 120  AA 127  BR 335.03

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

 

NOTE: The commission did not consult with the ALJ who presided at the hearing regarding witness credibility and demeanor. The commission's reversal is not based upon a differing assessment of witness credibility.

 


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