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

KORRE A CONNER, Employee

US PIPELINE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 08201544EC


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. The Department of Workforce Development filed a timely petition for review.

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 during two spells of employment for about six months as a welder for the non-subject employer, a pipeline construction business. His last day of work was July 13, 2008 (week 29).

The employee's work was performed in Lakeville, Minnesota. His residence was in Hayward, Wisconsin, well over 100 miles from Lakeville. For this reason, he did not return home during the course of his work week.

During the latter part of his employment, there were difficulties with the employee's family and marriage. On or about July 13, his wife called him to report that she was leaving home and that he should come back to take care of their children, ages 5 and 10. The employee conceived of no suitable alternative to caring for his children himself under these circumstances. Because of this, the employee did quit his employment and returned to Hayward so as to look after his children.

Wisconsin's unemployment insurance law provides that if an individual quits work because the health of a member of his immediate family leaves him with no reasonable alternative to terminating his employment, he is eligible for unemployment benefits so long as he remains able to work and available for work. See Wis. Stat. § 108.04(7)(c). The employee did not establish that he was required to quit due to his children's health. Further, for that exception to apply the employee must exhaust alternatives to quitting. In this case, the employee did not request a leave of absence. Further, the employee acknowledged that he had immediate family in the area. The employee could have attempted to arrange for his family to temporarily care for his children.

The commission therefore finds that in week 29 of 2008, the employee voluntarily terminated his employment within the meaning of Wis. Stat. § 108.04(7)(a) and not for any reason constituting an exception to that section.

The commission further finds that the employee was paid benefits in the amount of $1,065.00 for weeks 29 through 31 of 2008, 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 in this case results from the ALJ's misapplication or misinterpretation of the law. There is no evidence that the overpayment was the result of employee fault.

The commission further finds that waiver of benefit recovery is required under Wis. Stat. § 108.22(8)(c), because the overpayment did not result from the fault of the employee as provided in Wis. Stat. § 108.04(13)(f), and the overpayment was the result of a departmental error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 29 of 2008, and until four weeks elapse since the end of the week of quitting and the employee has earned wages in covered employment equaling at least 4 times the weekly benefit rate which would have been paid had the quitting not occurred. The employee is not required to repay the sum of $1,065.00 to the Unemployment Reserve Fund.

Dated and mailed November 12, 2008
conneko . urr : 132 : 1 : VL 1023.13  VL 1023.20 BR 335.01

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

 

NOTE: The commission did not consult with the ALJ who presided at the hearing regarding witness credibility and demeanor. The commission's reversal of the ALJ's decision is not based on credibility.

 

cc: Attorney Daniel La Rocque Henkels & McCoy, Inc.


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uploaded 2008/11/17