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

JILL M JOHNSON, Employee

BAYMONT INNS HOSPITALITY CORP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04401496AP


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.

On its own motion and pursuant to the authority granted in Wis. Stat. § 108.09(6)(d) the commission ordered the taking of additional evidence before an administrative law judge on the issue of the overpayment of unemployment insurance benefits to the employee. The hearing was held on December 13, 2004 before an ALJ acting on behalf of the commission.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ at the initial hearing as well as the evidence submitted at the December 13, 2004 hearing. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

In August 2003, the employee began working as a housekeeper for the employer, a hotel. In early February 2004, the employee informed the employer that she was quitting her employment effective Tuesday, February 24, 2004 (week 9) because of pain in her foot. She suffers from planter fascitis in her foot and could not stand for very long. The employer offered to reduce the number of rooms the employee would have to clean, but the employee could not even perform that lesser amount of work with her physical condition. The employee's last day of work was Monday, February 23, 2004 (week 9), and she sought payment of unemployment insurance benefits as of that week.

On March 4, 2004, the employee spoke with a department adjudicator regarding her eligibility for benefits. The employee explained that she was last treated by a physician in December 2003 for her plantar fascitis and was restricted from performing work that required more than one hour on her feet in an eight hour shift. The employee signed a written authorization for the doctor's office to provide the department with information regarding her physical restrictions. By telephone, the physician's representative confirmed that the employee was able to stand for one hour of an eight hour shift, yet suggested sit-down work was best to avoid aggravation of the employee's plantar fascitis condition.

To determine how this restriction affected the employee's ability to work and availability for work, the adjudicator generated a Conditions of Employment Database (COED) report categorizing the employee's restrictions as light work restrictions. The department uses the following definition for light work:

If a claimant is restricted to lifting, carrying, pushing or pulling not more than twenty pounds occasionally, and/or to ten pounds frequently; or is not to walk or stand to a significant degree, but is supposed to sit most of the time, then he/she is available for light work only. If a claimant cannot use arm or leg motion, or use a hand or foot to a significant degree, then the claimant is available for light work.

With a light work limitation, the COED report reflected that the employee's restrictions did not limit her to less than 15 percent of her suitable work and the initial determination allowed unemployment insurance benefits. The employee was then paid benefits totaling $2,155.00 for the calendar weeks ending February 28 through May 8, 2004 (weeks 9-19).

The employer appealed and the hearing office mailed a medical questionnaire to the employee's physician. The physician declined to answer the questions, citing the fact that the employee was last examined in February 2003. Because the employee sought treatment from a podiatrist after her quitting, a medical questionnaire was also sent to the podiatrist. The podiatrist indicated that he had first treated the employee on April 8, 2004. Based upon his examination and the employee's statements regarding her condition, he opined that the employee was limited to sedentary work, defined by the department as:

If the claimant is restricted to lifting, carrying, pushing or pulling less than ten pounds, or is required to sit most of the time and can only walk or stand occasionally, then s/he is available for sedentary work only.

For the appeal hearing, a COED report was generated using the sedentary work restriction. With this restriction, the employee was able and available for less than 15 percent of her suitable work.

The first issue to be decided is the nature of the employee's separation and whether she is eligible for unemployment insurance benefits.

Both parties agreed that the employee quit her employment and that it was not suspended. Wis. Stat. § 108.04(7) provides that a worker who terminates his or her employment is ineligible for unemployment insurance benefits until four weeks have elapsed since the week of the quitting and until the worker has earned four times his or her weekly benefit rate in subsequent covered wages unless the quitting is within one of the exceptions listed in the statutes.

Wis. Stat. § 108.04(7)(c) allows payment of benefits to a worker who terminates her work with no reasonable alternative because she is unable to perform her work for the employer and only if she remains able to work and available for work generally in the labor market. Wis. Admin. Code § DWD 128.01(2)(b) provides that a claimant is not considered able to work or available for work in any week if:

The claimant's physical or psychological condition or personal circumstances over which the claimant has no control limit the claimant to less than 15% of the opportunities for suitable work, including all such jobs whether vacant or filled, in the claimant's labor market area;

Wis. Admin. Code § DWD 100.02(61) defines "suitable work" as "work that is reasonable given the claimant's training, experience, and duration of unemployment as well as the availability of jobs in the labor market."

In this case, the commission agrees with the administrative law judge that the employee had no choice but to quit. The employer offered her the opportunity to work at a slower pace by cleaning fewer rooms, but given her physical condition, she still could not perform the work. There were no other alternatives to quitting. Next, with respect to the employee's ability to work and availability for work, the commission agrees with the administrative law judge's reliance on the restrictions set forth by the podiatrist in the certified medical report. Not only is the podiatrist a specialist, but he examined the employee nearest to the date of her quitting. Using the sedentary restriction, the employee's ability to work and availability for work fails to meet the 15% standard set forth above. Given this and the fact that the employee's quitting does not fall within any other exception, she was not eligible for the $2,155.00 in unemployment insurance benefits paid to her.

The next issue to be decided is whether the employee must repay those erroneously paid benefits.

There is no evidence of employer error as a basis for the erroneously paid benefits. Thus, pursuant to Wis. Stat. § 108.22(8)(c), the requirement that the employee repay the overpaid benefits will only be waived if the overpayment (1) was due to department error and (2) was without fault, false statement, or misrepresentation on behalf of the employee.

The payment of benefits occurred following the issuance of the determination. While the administrative law judge reversed the adjudicator's determination that the employee was able to work, reversal by itself does not constitute department error. See Wis. Stat. § 108.02(10e). Wis. Stat. § 108.02(10e) defines "departmental error" as an error made by the department in computing or paying benefits resulting from

(a) A mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, whether by commission or omission, or

(b) Misinformation provided to a claimant by the department, on which the claimant relied.

The adjudicator delayed issuance of the initial determination in order to obtain medical information from the employee's physician. The physician did not categorize the employee's work restriction and the adjudicator chose a restriction that was reasonable based upon her investigation and the department's definitions of light and sedentary work. There was no error in the adjudicator's process. Once the appeal hearing was scheduled and certified medical information was sought, the employee's physician declined to complete the medical report. Yet, a report was completed by the employee's podiatrist, reflecting a sedentary work restriction. Once a medical expert categorized her restrictions, reliance on that information was appropriate. Therefore, there was no department error and the repayment of the overpayment cannot be waived.

The commission therefore finds that in week 9 of 2004, the employee terminated work with the employer because the employee was unable to do that work and did not have a reasonable alternative to quitting, within the meaning of Wis. Stat. § 108.04(7)(c), but that the employee was not able to work and available for work on the general labor market as of that week, within the meaning of Wis. Admin. Code § DWD 128.01 (2)(a). The commission also finds that the employee was paid benefits in the amount of $2,155.00 for weeks 9 through 19 of 2004, to which she was not entitled, within the meaning of Wis. Stat. § 108.03 (1). The commission finally 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 departmental error.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is ineligible for unemployment benefits beginning in week 9 of 2004, and until the employee is able to work and available for work. The employee is required to repay the sum of $2,155.00 to the Unemployment Reserve Fund.

Dated and mailed March 8, 2005
johnsji . urr : 150 : VL 1023.10  BR 335.04

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

The employee petitioned the appeal tribunal decision primarily objecting to the requirement that she repay the overpaid benefits. As mentioned, the commission scheduled additional evidence in order to determine the basis of the overpayment. Although this decision ultimately affirms the appeal tribunal decision, the commission issued its own decision in this matter to provide greater explanation regarding the repayment of the overpaid benefits.

cc: Baymont Inns (Oshkosh, WI)


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