Wis.LIRC UC Decision: Birmingham, Laurie - February 28, 2008 - AA 105 - Ability to work - physical condition; BR 335.02 - Waiver granted - 'department error' - mistake of fact - adjudicator did not accurately enter claimant's physical restrictions into Conditions of Employment Database (COED) program, leaving out one element of restrictions, resulting in erroneous report that claimant was available for

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

LAURIE L BIRMINGHAM, Employee

STARBUCKS COFFEE, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07604359MW

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:

Replace the sixth sentence in the third paragraph under the "FINDINGS OF FACT and CONCLUSIONS OF LAW" with the following:

On or about June 1, 2007, the employee provided the employer with restrictions from her doctor that directed her to "discontinue repetitive lifting/reaching activities."

Replace the 12th paragraph under the "FINDINGS OF FACT and CONCLUSIONS OF LAW" with the following:

Unemployment insurance benefits totaling $1,496.00 were paid to the employee after the initial determination was issued on June 23, 2007. Those monies are overpaid based upon the finding that the employee was not able and available for work as of week 25 of 2007.
The ALJ used a certified medical report as the basis for determining the employee's physical restrictions as of the date of her claim for benefits. The adjudicator did not use a certified medical report but used the information available from the employee and the employer. There is no evidence that either party was dishonest in the assessment of the employee's restrictions. The information was not contradictory and, as such, the adjudicator's reliance on it was proper. However, it appears that the adjudicator did not accurately enter the restrictions into the Conditions of Employment Database (COED) program. In particular, the information provided to the adjudicator was that the employee was restricted from reaching, bending or lifting over 40 pounds. The adjudicator only entered the criteria of lifting, as a medium restriction, and no reaching. The "no bending" was not entered as a separate criterion. The commission finds that this failure constituted department error sufficient to waive repayment of the overpaid monies.

Replace the 14th paragraph under the "FINDINGS OF FACT and CONCLUSIONS OF LAW" with the following:

The recovery of the overpaid benefits is waived under Wis. Stat. § 108.22(8)(c), because the overpayment did not result from the fault of the claimant or the employer as provided in Wis. Stat. § 108.04(13)(f) and the overpayment was a result of department error within the meaning of Wis. Stat. § 108.02(10e)(a) and (b).

Replace the third sentence of the "DECISION" paragraph with the following:

The employee has been overpaid benefits but recovery of the overpayment is waived.

DECISION

The decision of the administrative law judge, as modified, is affirmed. Accordingly, the employee is ineligible for unemployment insurance benefits beginning in week 25 of 2007, and until the employee is able to work and available for work. Recovery of the overpaid benefits is waived.

Dated and mailed February 28, 2008
birmila . umd : 150 AA 105 BR 335.02

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The employee petitioned the appeal tribunal decision arguing that she was able to work and available for work as an actor and teacher, her chosen professions and, as such, she should be eligible for unemployment insurance benefits. She also disputed repayment of the overpaid monies.

In terms of the able to work and available for work standards set by the statute, the employee must be able and available for at least 15% of work suitable for her in the general labor market, not just her chosen professions. She does not meet this standard with her current restrictions. The commission wishes to note that the department may only require a partially employed claimant to meet the able to work and available for work standards if there is some definite indication that the claimant is not genuinely interested in working fulltime, or the claimant is incarcerated and is not permitted to look for work on the general labor market. Consequently, if the employee is partially employed, she is advised to contact the unemployment insurance department to determine her benefit eligibility.

Finally, for the reasons set forth in the modified language, the commission agrees with the employee that she should not be required to repay the overpaid benefits. The modification is based upon additional evidence obtained at the remand hearing.

The appeal tribunal decision, as modified, is affirmed.

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uploaded 2008/03/11