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

FRANKLIN P DONELSON, Employee

OSI COLLECTION SERVICES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04609422MW


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 seven weeks in his last period of employment as a collector for the employer, a collection service. The employee's last day of work was August 27, 2004 (week 35).

The initial issue is whether the separation was a quit or a discharge, and whether it occurred under circumstances which would permit the payment of benefits.

The employee was a no call/no show on August 28, 2004.

The employee was absent with notice on August 30 and 31, 2004. He did not have any accrued paid time off to cover these absences.

The employer called the employee prior to September 2, 2004, and, during the resulting discussion, he was granted leave through September 6, 2004. However, he was told that his failure to report on September 7, 2004, would place his job in jeopardy.

The employee was a no call/no show on September 7, 2004.

The employee attributes his failures to report for work or to provide notice of his absences in August and September of 2004 to incapacity due to alcoholism.

However, it is well-settled that such incapacity must be established by competent medical evidence. See, Michalak v. Reynolds Machine Co., Inc., UI Hearing No. 99605074MW (LIRC Oct. 14, 1999) (employee must establish inability to control drinking by competent medical evidence in order for alcohol consumption to constitute valid reason for absences or for failure to provide notice of absences); Hochschild v. Midland Paper Co., UI Hearing No. 99606326MW (LIRC April 20, 2000)(in absence of competent medical evidence establishing that employee is unable to abstain from alcohol consumption, use of alcohol must be deemed volitional and not a valid reason for absence).

The employee had an opportunity to maintain the employment relationship by reporting to work on September 7, 2004, but he failed to do so without valid reason. The commission concludes, under the circumstances present here, that this was a quit. There is no exception to the quit disqualification which would apply.

The final question is whether the overpayment of benefits should be waived.

As the commission noted in Nedland v. Nedland Industries, Inc., UI Hearing No. 99201248RL (LIRC March 8, 2000), "...it was error for the administrative law judge to find that the employee's absences were justified as having been due to"  the employee's medical condition given the lack of competent evidence to that effect; absent such a connection, the "attendance record was unjustified and without question misconduct;" and the administrative law judge's conclusion to the contrary constituted department error.

Adopting the same reasoning, the commission concludes that the administrative law judge here committed an error, and overpayment of any benefits awarded as the result of his decision should be waived as a result.

The commission therefore concludes that, in week 35 of 2004, the employee quit his employment with the employer, but not with good cause attributable thereto or for any other reason constituting an exception to the quit disqualification of Wis. Stat. § 108.04(7)(a).

The commission further finds that, as a result of the appeal tribunal decision, the employee was paid benefits in the amount of 2,303.00, for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1), but that waiver of recovery of this overpayment of benefits is appropriate pursuant to Wis. Stat. § 108.22(8)(c) because the overpayment was the result of department error and not due to employee fault as defined in Wis. Stat. § 108.04(13)(f).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 35 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 the weekly benefit rate which would have been paid had the quitting not occurred. The employee is not required to repay the benefits overpayment of $2,303.00 to the Unemployment Reserve Fund.

Dated and mailed February 15, 2005
donelfr . urr : 115 : 4 BR 335.02  PC 714.10  MC 605.09

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

 

NOTE: The commission did not confer with the administrative law judge before reversing his decision, because its reversal was not based upon a differing view as to the credibility of witnesses, but instead upon a differing conclusion as to what the hearing record in fact established and upon a differing interpretation of the relevant law.

 

cc: OSI Collection Services Inc (Brookfield, WI)


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