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

MICHELLE M AGATHEN, Employee

MEDICAL STAFFING NETWORK INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 10600750MW


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 began working for the employer as a certified nursing assistant (CNA) on February 21, 2002, with her last actual day of work being January 6, 2010 (week 2).(1) The employee worked part-time, on call for the employer.

Prior to the weeks of issue, the employee's last day of work was December 3, 2009 (week 49). On December 11, the employee's tuberculosis (TB) skin test requirement expired making her inactive for work for the employer. The employee was contacted and was notified that she would not be able to work until a new TB test was sent. The employee provided notice to the employer that she satisfied the TB requirement as of Wednesday, December 30, 2009 (week 1).

The employer testified the TB test is a requirement for all CNAs working in the medical field. The employer did not provide evidence that the employee's failure to maintain her TB test resulted in an actual loss of license or loss of status on the caregiver registry. No documents were marked as exhibits and no other testimony was taken regarding the employee's status.

Department records reflect that the employee filed for and received unemployment benefits in weeks 50 through 52 of 2009, in the amount of $363 each week. Those records further reflect that the employee did not report earning any wages in those weeks. The employee did not file for benefits thereafter.

Wis. Stat. § 108.04(1)(b) and (bm) provides:

1. Except as provided in subd. 2., if an employee's employment is suspended by the employee or the employee's employer or an employee is terminated by the employee's employer, due to the employee's unavailability for work or inability to perform suitable work otherwise available with the employee's employer, or if the employee is on a leave of absence, the employee is ineligible for benefits while the employee is unable to work or unavailable for work.

2. If an employee is absent from work for 16 hours or less in the first week of a leave taken under subd. 1. or in the week in which a suspension or termination under subd. 1. occurs, the employee's eligibility for benefits for that week shall be determined under par. (bm).

(bm) For purposes of par. (a) 1. and (b) 2., the department shall treat the amount that the employee would have earned as wages for a given week in available work as wages earned by the employee and shall apply the method specified in s. 108.05 (3) (a) to compute the benefits payable to the employee. The department shall estimate wages that an employee would have earned if it is not possible to compute the exact amount of wages that would have been earned by the employee.

The issues to be decided are whether the employee was suspended by the employer 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 during the weeks claimed, weeks 50 through 52 of 2009.

For week 50 of 2009, the employee's TB test status made her ineligible to work Saturday; however, the employer failed to establish that there was any work actually available on that day that she missed. Thus, there are no wages to reduce her benefit eligibility in that week.

For weeks 51 and 52 of 2009, the employee was ineligible for work based upon the fact that her TB test was not current. The employer suspended her during these weeks and her eligibility hinges upon her ability to work and availability for work in the general labor market.

Wisconsin Administrative Code § DWD 128.01(1) and (2) "Able to work and available for work," provides:

(1) APPLICABILITY. Under s. 108.04 (2), Stats., a claimant shall be eligible for unemployment benefits for any week of total unemployment only if the claimant is able to perform suitable work and available for suitable work. Under s. 108.04 (1) (b), (7) (c), and (8) (e), Stats., a claimant shall be eligible for unemployment benefits only if the claimant is able to perform suitable work and available for suitable work. The department may determine the claimant's ability to perform suitable work and availability for suitable work at any time through questioning of the claimant and other procedures.

(2) PRESUMPTION. Unless evidence is obtained that in the relevant week the claimant was not able to work or available for work, a claimant is presumed able to work and available for work for any week that all of the following conditions are met:

(a) The claimant has registered for work and has complied with ss. DWD 126.02 and 126.04, or registration is waived under s. DWD 126.03 or excused under s. DWD 126.05.

(b) The claimant has complied with the work search requirements of s. 108.04 (2) (a) 3., Stats., and ch. DWD 127, or a work search is waived or excused under ch. DWD 127.

In this case, for weeks 51 and 52 of 2009, the employer presented evidence that the employee was not able to work for it. In analyzing the able and available provisions, the ALJ found that "there is no evidence that she placed other restrictions on her availability" and found the employee generally able to work and available for work in the labor market.

However, given the employee's unavailability for work, the commission disagrees with the ALJ's a presumption of eligibility. Specifically, the evidence presented by the employer that the employee was not able to work or available to work based upon the expiration of her TB test, constituted evidence "obtained that in the relevant week the claimant was not able to work or available for work" within the meaning of Wis. Admin. Code § DWD 128.01(2). As such, it was the employee's burden to establish that she was able to work and available for work within the meaning of Wis. Admin. Code § DWD 128.01(3). See Jones v. Glen Oak Lumber & Milling, Inc., UI Dec. Hearing No. 09001693BO (LIRC September 11, 2009)(the commission found that the ALJ's reliance on a COED report was misplaced where the employee did not appear and the report was based upon medical restrictions not established through competent evidence) and Fiedler v. Bane Nelson Inc., UI Dec. Hearing No. 09005919JV (LIRC May 5, 2010)(the commission held that the employee raised the issue of her availability for work when she began full time school attendance and, at that point, it was her burden to establish that the shift restriction did not constitute a withdrawal from the labor market). In this case, the employee did not appear as a witness and no testimony established that she was able to work and available for work in those weeks. Thus, she was not eligible for unemployment insurance benefits in weeks 51 and 52 of 2009.

The next issue to be decided is whether the employee must repay those benefits erroneously paid for weeks 51 and 52 of 2009.

There is no evidence of employer error as a basis for the erroneously paid benefits. Thus, pursuant to Wis. Stat. § 108.22(8)(c), the requirement that the employee repay the overpaid benefits will only be waived if the overpayment (1) was due to department error and (2) was without fault, false statement, or misrepresentation on behalf of the employee.

The payment of benefits occurred following the issuance of the determination, which was affirmed by the ALJ. While the commission has reversed the adjudicator's determination that the employee was able to work, reversal by itself does not constitute department error. See Wis. Stat. § 108.02(10e). Wis. Stat. § 108.02(10e) defines "departmental error" as an error made by the department in computing or paying benefits resulting from

(a) A mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, whether by commission or omission, or
(b) Misinformation provided to a claimant by the department, on which the claimant relied.

The commission reached a differing decision based upon a differing legal interpretation regarding the burden of proof. The overpayment was not caused by department error and the repayment of the overpayment cannot be waived.

The commission therefore finds that as of week 50 of 2009, the employee's employment was suspended by the employer because the employee was unable to do or unavailable for suitable work otherwise available with the employer and she was able to work and available for work for week 50 within the meaning of Wis. Stats. § 108.04(1)(bm) but was not able to work or available for work for weeks 51 and 52 of 2009 within the meaning of Wis. Stats. § 108.04(1)(b).

The commission also finds that the employee was paid benefits in the amount of $726 for weeks 51 and 52 of 2009, to which she was not entitled, within the meaning of Wis. Stat. § 108.03 (1). The commission finally finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c), because the overpayment was not the result of a departmental error.

DECISION

The appeal tribunal decision is amended as to weeks of issue and, as amended, is affirmed in part and reversed in part. The employee is eligible for benefits, if otherwise qualified, in week 50 of 2009, but that in weeks 51 and week 52 of 2009, the employee is not eligible for benefits. The employee is required to repay the sum of $726 to the Unemployment Reserve Fund.

Dated and mailed October 8, 2010
agathmi : 150 : 5 AA 200

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will withhold benefits due for future weeks of unemployment in order to offset overpayment of U.I. and other special benefit programs that are due to this state, another 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 overpayment.

FURTHER
NOTE: The commission did not confer with the ALJ prior to reversing his decision in part. The reversal is not based upon a differing credibility assessment but instead upon a differing legal interpretation regarding the burden of proof.

cc: Medical Staffing Network, Inc. (Wauwatosa, WI)


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uploaded 2010/11/02


Footnotes:

(1)( Back ) At the hearing and in the employer's petition, the employer notes that the employee terminated her employment via phone call February 5, 2010 (week 6). However, a subsequent separation is not at issue before the commission and it has presumably not been addressed by the department because the employee did not file a claim for unemployment insurance benefits after week 52 of 2009.