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

CHARLES A MOORE, Employee

MANPOWER TEMPORARY SERVICES, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06605420MW


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 for approximately 1 and 1/2 years as a temporary worker for the employer, a staffing service. The employee's last day of work was July 17, 2006 (week 29).

On May 26, 2005, the employee began working at Northwestern Mutual Life as a janitor. This was a full-time assignment which paid $10.00 per hour. The employee continued at his position until July 17, 2006, when he informed the on-site manager that he could not continue at his position because of a deteriorating eye condition which did not allow him to continue performing his job. The employee indicated that he was to undergo surgery for his eyes.

The employee has not worked anywhere since July 17, 2006. He underwent surgery for one of his eyes, and is waiting to undergo surgery to the other eye. The employee indicated at the hearing that he cannot work due to his poor vision

A physician filled out a UCB-474 certified medical report for him. The UCB-474 indicates that employee suffers from diabetic retinopathy. He is limited to light work. He is limited to 33 percent of his normal climbing ability; he has no restrictions as it relates to stooping, crouching, crawling, kneeling, balancing, reaching or fingering. The doctor indicated in her report that the employee "does not have physical limitations, but has visual limitations" and that the employee "needs a low vision compensation environment" in order to work. The employee testified that he has worked as a housekeeper, warehouse worker, baker, welder, and machine operator.

The issues to be decided are whether the suspension of employment by the employee or suspension or termination by the employer was because the employee was unable to do, or unavailable for, any suitable work available with the employer and if so, whether the employee was able to work and available for work in the labor market at the time the claim for unemployment benefits was initiated.

The statues provide that a claimant is not eligible for benefits unless able to work and available for work. The Wisconsin Administrative Code implements the statutes and provides in relevant part that a claimant will not be considered able and available for work if his or her physical condition or uncontrollable circumstances limit him or her to less than 15 percent of the opportunities for suitable work in the labor market.

The employee testified that he could not see anything but shadows and could not do the sort of work he had performed in the past or any other work with his poor vision. The medical report supports his claims that his vision is very poor. Since he is unable to perform work in his labor market at the present time, he is not able and available for work as that phrase is defined in the statutes.

The commission therefore finds that as of week 29 of 2006, the employee's employment was suspended by the employee because he was unable to do, or otherwise unavailable for suitable work otherwise available with the employer, within the meaning of Wis. Stat. § 108.04(1)(b)1, and that the employee is unable to work or unavailable for work on the general labor market, with the meaning of said statute

The final issue to be decided is whether erroneously paid benefits must be repaid to the department.

Wisconsin Statute § 108.22(8) provides that recovery of overpaid benefits shall be waived if the overpayment occurred as the result of departmental error and if the overpayment was not caused by the claimant's fault or by a false statement or misrepresentation by the claimant. Under Wis. Stat. § 108.02(10e) "departmental error" is defined as:

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

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

There was no claimant fault or false statement or misrepresentation by the claimant that resulted in the erroneous payment of benefits. The claimant was paid benefits because the ALJ did not take into account the employee's testimony that he could not work due his poor vision. The commission finds that the ALJ's mistake of fact constituted error on the part of the department as defined in Wis. Stat. § 108.02(10e).

The commission further finds that due to department error and not due to any action by the employee, the employee was paid benefits in the total amount of $5070.00, during weeks 29 through 38 and 40 through 52 of 2006 and weeks 1 through3 of 2007, for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1) but that recovery of the benefits paid shall be waived, within the meaning of Wis. Stat. § 108.22(8)(c).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 29 of 2006. Recovery of the overpaid benefits is waived. The employee is not required to repay the department, nor will the overpaid benefits be recovered by any other means. The appropriate employer accounts will be credited immediately with the overpaid amount.

Dated and mailed February 16, 2007
moorech . urr : 178 : 1 AA 105  BR 335.02

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

 

NOTE: The commission does not reverse due to any differing assessment of witness credibility but due to the fact that the ALJ's legal conclusions were not supported by the record.

 

cc: Manpower Temporary Services (Milwaukee, Wisconsin)


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