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

STEPHANIE D. LOSINIECKI, Employee

COUSINS SUBS, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 11602005MW


PROCEDURAL HISTORY

Department records reflect that the employee initiated a claim for unemployment insurance benefits on January 4, 2011 (week 1). Following an investigation, in which both employee and employer participated, the adjudicator issued a determination finding that as of the calendar week ending January 15, 2011 (week 3), the employee was on a leave of absence to attend college. The effect of the determination was that she was not eligible for the weekly benefits she received in weeks 3, 4 and 5, totaling $183.00, and that she was required to repay the overpayment.

The employee timely appealed the determination and a hearing was conducted on March 28, 2011. The employer did not appear and the ALJ took testimony from the employee that she had requested a leave of absence as of Friday, January 14, 2011 (week 3) to attend school for the semester. The employee further testified that she usually was scheduled 10 hours per week but did not miss any scheduled work that week. After agreeing that she was not able and available for work as of the leave request, the ALJ solicited a withdrawal from the employee. A withdrawal decision was issued that day. The reverse side of the withdrawal decision indicates,

A party cannot appeal a withdrawal decision. However, the appellant may submit a request to retract the withdrawal and to reinstate the prior request for hearing. This request must be in writing, must be received within 21 days from the date of the withdrawal decision, and must include the reasons for the retraction.

On April 8, 2011, the employee petitioned for commission review of the withdrawal decision indicating that her reason for the request was that she did not agree with the overpayment for week 3 of 2011.

Request to Retract Withdrawal

Although withdrawals were originally intended not to be appealable, the format of the withdrawal itself is treated by the commission as an appealable decision. While there have been changes to the format of the withdrawals issued by the department since the key case of Glasschroeder v. A 1 A Plus, UI Dec. Hearing Nos. 03401009AP & 03401010AP (LIRC March 4, 2004), the changes are minor and the commission has continued to review Withdrawal decisions. The commission continues to do so in this case.

In reviewing whether a retraction request should be granted, the commission uses the standard set forth in Wis. Admin. Code § DWD 140.05(2); it provides that a request to retract a withdrawal and reinstate an appeal:

...shall be in writing and state a reason for the request. The administrative law judge may not grant a request to retract a withdrawal unless the request establishes good cause for the retraction and is received within 21 days after the withdrawal decision was mailed to the appellant.

Thus, the issue is whether the employee's request to retract her withdrawal should be granted pursuant to Wis. Admin. Code § DWD 140.05(2).

Wis. Stat. § 108.04(1)(b) 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.

It appears that the ALJ solicited the employee's withdrawal without considering the applicability of Wis. Stat. § 108.04(1)(b)2 to week 3 of 2011. The commission considers this good cause to grant the employee's request to retract her withdrawal.

Wis. Stat. § 108.09(6) provides, in material portion, as follows:

Commission Review. (a) The department or any party may petition the commission for review of an appeal tribunal decision, pursuant to commission rules, if such petition is received by the department or commission or postmarked within 21 days after the appeal tribunal decision was mailed to the party's last-known address. The commission shall dismiss any petition if not timely filed unless the petitioner shows probable good cause that the reason for having failed to file the petition timely was beyond the control of the petitioner. If the petition is not dismissed the commission may take action under par. (d).

. . .

(d) In any case before the commission for action under this subsection, the commission may affirm, reverse, modify or set aside the decision on the basis of the evidence previously submitted, may order the taking of additional evidence as to such matters as it may direct, or it may remand the matter to the department for further proceedings.

The commission therefore finds that:

(1) The employee's request for hearing was withdrawn, within the meaning of Wis. Stat. § 108.09(4)(a),

(2) The employee filed a request to retract her withdrawal that met the requirements of Wis. Admin. Code § DWD 140.05(2), and

(3) The commission directs that the ALJ complete the hearing in this matter and issue a decision, pursuant to Wis. Stat. 108.09 (6)(d).(1)

DECISION


The withdrawal decision of the administrative law judge is set aside. Accordingly, the request for hearing will be reinstated and the matter returned to the ALJ for action consistent with the above and resulting in an appeal tribunal decision.

Dated and Mailed April 29, 2011

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

Laurie R. McCallum, Commissioner

PC 718 : AA 100 : AA 105 : AA 240


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Footnotes:

(1)( Back ) As mentioned, the employer did not participate and testimony was taken from the employee. The ALJ may, at her discretion, reschedule the hearing for additional evidence or may seek permission from the parties to issue a decision on the record developed on March 28, 2011, without additional hearing.