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

RANDALL J NARLOCK, Employee

CORNWELL PERSONNEL ASSOCIATES LTD, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05602313MW


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 periodically for eleven years for a temporary help agency. His last day of work was January 30, 2004.

On February 3, 2004 (week 6), the employer offered the employee an assignment which he refused.  The employee would have earned $192 in week 6 and $128 in week 7 if he had accepted all the work available. The employee accepted another assignment later in week 7 and began a long term assignment in week 8.

The issue to be decided is whether the employee was called upon with due notice to perform work actually available with the employer in week 6 of 2006.

The employer offered the employee a new position in week 6 that the employee declined. The employee did not appear at the hearing to contest that he was offered work in weeks 6 and 7. There is no good cause exception to the "due notice" provision of Wis. Stat. § 108.04(1)(a). The law does not inquire into the reason the employee failed to perform all available work, only whether the employee failed to perform all available work. Benz v. Johnson School Bus Service Inc., UI Dec. Hearing No. 01606441WB, (Oct. 22, 2001). Peters v. Cornwell Personnel Associates Ltd., UI Dec. Hearing No. 02605143MW (LIRC December 4, 2002).

Wisconsin Statute § 108.04(1)(a), provides that the amount the employee could have earned performing all work available is treated as wages, and benefits payable are computed by using the method set forth in Wis. Stat. § 108.05(3)(a). Under Wis. Stat. § 108.05(3)(a), the first $30.00 of wages is disregarded and the employee's weekly benefit payment is reduced by 67% of the remaining amount. Using this formula, the employee will have some residual entitlement in each week

The commission finds that in weeks 6 and 7 of 2004 the employee was called on by his current employing unit to report for work actually available, and was unable to perform or unavailable for such work within the meaning of Wis. Stat. § 108.04(1). The employee could have earned $192.00 in week 6. Based on his weekly benefit rate of $142, he was entitled to benefits of $33 in that week. The employee received benefits totaling $142 in that week. In week 7, the employee could have earned $128, in addition to wages of $161 previously reported, for total wages of $ 289. Based on his weekly benefit rate, he was entitled to no benefits in that week. The employee received benefits totaling $54. The commission therefore finds that the employee was paid benefits in the total amount of $163 for which he was not eligible to which he 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.

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).

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 decision of the administrative law judge is reversed. Accordingly, in week 6 of 2004, the employee is eligible for benefits in the amount of $33. He is required to repay the sum of $ 163 to the Unemployment Reserve Fund.

Dated and mailed November 29, 2005
narlora2 . urr : 178 : 1   AA 110

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

The commission does not reverse based on any differing assessment of witness credibility but as a matter of law.

 


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uploaded 2005/12/05