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

JESSICA R BROWN, Employee

DE PAUL HOMES & SHELTERS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07401769GB


An administrative law judge 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 administrative law judge. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for the employer, a homeless shelter, for approximately one year as a "lifestyle coordinator." Her last day of work was June 12, 2007 (week 24).

The employee found her job stressful, and had a personality conflict with her supervisor, whom she believed was unduly critical of her job performance. The employee began seeing a psychiatrist in February of 2007, who diagnosed her with major depression and prescribed sedatives.

The employee talked to the employer about feeling stress on the job and about the fact that she was having trouble communicating with her supervisor. Starting in May of 2007, the employer began holding regular meetings with the employee to work through some of these issues. The employee did not tell the employer that she was diagnosed with depression or that it was affecting her ability to work.

On June 11, 2007, the employee submitted a letter of resignation, notifying the employer she would be leaving effective July 6. The letter contained no explanation for the employee's decision to resign. When the employee reported for work on June 13, she was notified by the employer that it had decided to terminate the employment relationship immediately, although she would be paid until July 6.

The issue to be determined is whether the employee's quitting was for a reason permitting the immediate payment of benefits.

Wisconsin Stat. § 108.04(7)(c) provides that an employee who terminated his or her work, but had no reasonable alternative to quitting because he or she was unable to do the work, is eligible for benefits if otherwise able to work and available for work. The commission has considered whether the employee's quitting falls within that statutory exception, but concludes it does not.

Certified medical evidence submitted at the hearing indicates that the employee has been diagnosed with depression. However, the employee's medical report indicates that, although the employee suffers from depression, her doctor believed she could perform her job as of her last day of work and did not advise her to quit. (1)

In addition to the fact that the medical evidence in the record does not support a conclusion that the employee was unable to perform the job, it is also apparent that she did not pursue, let alone exhaust, reasonable alternatives to quitting. The employee never told the employer about her emotional difficulties, and to conclude that there was nothing the employer could have done to assist her in the workplace had it understood her situation would be purely speculative.

The employee notified the employer she was quitting effective July 6, 2007 (week 28), but was only permitted to work until June 13 (week 24). These circumstances fall under the "accelerated quit" principle. If an employee gives the employer notice of her intended resignation, and sets a date for that resignation to become effective, and if the employer refuses to permit the employee to continue working up until the time that notice would have been effective, the employee will be eligible for benefits until the time the resignation would have become effective unless there was some intervening misconduct on her part. See, Tomasek v. Kwik Trip Inc. (LIRC, July 22, 2003), and cases cited therein. In this case, the employee indicated that her last day of work would be in week 28, but the employer refused to permit her to work after week 24. Therefore, the employee's quit date was "accelerated" from week 28 to week 24 of 2007.

The commission therefore finds that the employer, by its actions in failing to offer continued work until the effective date of the quitting, incurred liability for UI benefits in weeks 24 through 27 of 2007, should such benefits be payable.

The commission further finds that in week 28 of 2007 the employee voluntarily terminated her work with the employer, and that her quitting did not fall within the exception enumerated in Wis. Stat. § 108.04(7)(c), or any other statutory exception which would permit the immediate payment of benefits.

The commission further finds that the employee was paid benefits in weeks 28 through 33 of 2007 in the total amount of $1,101, for which she was not eligible and to which she was not entitled, within the meaning of Wis. Stat. § 108.03(1).

A secondary issue presented in this case is whether the overpayment of benefits to the employee was because of departmental error or was partially or wholly because of the employee's actions, and whether the department is required to waive recovery of any portion of the overpayment.

"Departmental error" is 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, whether by commission or omission, or misinformation provided to a claimant by the department on which the claimant relied. Wis. Stat. § 108.02(10e). In this case, benefits were paid to the employee because the appeal tribunal made findings that were contrary to the medical evidence in the record, which specifically indicated the employee was able to do the job and had not been advised to quit. Under the circumstances the overpayment was caused by a departmental error, and recovery of the overpaid benefits must be waived.

The commission therefore finds that waiver of benefit recovery is required under Wis. Stat. § 108.22(8)(c), because the overpayment was the result of a department error and did not result from the fault of the employee, as provided in Wis. Stat. § 108.04(13)(f).

DECISION

The decision of the administrative law judge is affirmed in part and reversed in part. Accordingly, the employee is eligible for benefits in weeks 24 through 27 of 2007, provided she is otherwise qualified. The employee is ineligible for benefits beginning in week 28 of 2007, and until four weeks have elapsed since the end of the week of quitting and she has earned wages in covered employment performed after the week of quitting equaling at least four times the employee's weekly benefits rate which would have been paid had the quitting not occurred. The employee is not required to repay the sum of $1,101 to the Unemployment Reserve Fund.

Dated and mailed October 26, 2007
brownje . urr : 164 : 9  VL 1023.10  BR 335.01

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

 


NOTE: The commission did not confer with the administrative law judge about witness credibility and demeanor. The commission's decision to reverse does not rely on a differing assessment of witness credibility, but is as a matter of law.

 

cc: Attorney Brian M. Maloney


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Footnotes:

(1)( Back ) On the certified medical report the employee's doctor added a comment, "I do not remember recommending to patient that she seek other work, but she did mention to me in last meeting that she was seeking a new job and I do think that working in a fulfilling job could greatly help with her depression." The commission attaches no weight to this comment. The concept that working in a fulfilling job can enhance one's mental state applies to virtually everyone, and the employee's doctor specified elsewhere in the report that the employee was able to perform the job and that he had not recommended she quit.

 


uploaded 2007/10/29