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

MARK A DICKERSON, Employee

NORDCO INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06601448MW


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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own, except that it makes the following modifications:

Add after the last paragraph under the administrative law judge's Findings of Fact and Conclusions of Law the following:

The appeal tribunal further finds that the employee was paid benefits in the amount of $4,373.00 for weeks 49 through 53 of 2005 and weeks 1 through 8 of 2006, 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 resulted in this case because the original decision on the merits allowed benefits. The employer failed to appear at the original hearing but established good cause for such failure. This decision, which is based in part on testimony offered by the employer, denies benefits and results in an overpayment. The overpayment was not due to departmental error as defined in Wis. Stat. § 108.02(10e)(a) and (b).

The appeal tribunal 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 departmental error. See Wis. Stat. § 108.22(8)(c)2.

Add after the second sentence of the DECISION paragraph the following:

The employee is required to repay the sum of $4,373.00 to the unemployment reserve fund.

Add after the ALJ's signature the following:

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.I. 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.

DECISION

The decision of the administrative law judge, as modified, is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 21 of 2005, and until four weeks have elapsed since the end of the week of quitting and the employee 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 required to repay the sum of $4,373.00 to the unemployment reserve fund.

Dated and mailed July 11, 2006
dickema . umd : 132 : 8  MC 605.091  VL 1001.09

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

The employee has petitioned for review of the appeal tribunal decision that found he voluntarily terminated his employment but not for any reason permitting immediate benefit payment. The employee asserts in his petition that he did make a number of attempts to contact the employer. However, whether the employee's separation is viewed as a quitting or a discharge, the employee is not eligible for unemployment insurance benefits. If the commission were to accept the employee's assertion of multiple attempts to maintain contact with the employer, the only change that would occur would be that the employee would be found ineligible for benefits because he was discharged for misconduct connected with his work. Such a finding would involve a more lengthy suspension of the employee's benefit eligibility, stricter requalifying requirements, and the removal of the employer's wages for purposes of determining the employee's maximum benefit amount. The commission generally does not make a party worse off for filing a petition for review. Whether the employee attempted to contact the employer is not the focus when determining the employee's eligibility. Rather, it is the employee's absence from work and the reason for that absence. The employee was absent from work because he violated the law. Because of the employee's culpable actions, he was unable to report for work for the employer because he was being detained by Waukesha County or in the House of Corrections.

The commission modified the appeal tribunal decision to reflect the overpayment that results from the finding that the employee is ineligible for benefits as of week 21 of 2005. This information was omitted from the appeal tribunal decision.

cc: Attorney Dean F. Kelley


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uploaded 2006/07/17