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

REBECCA M FINCH, Claimant

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 11400546AP


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:

Under the FINDINGS OF FACT AND CONCLUSIONS OF LAW, insert the following sentence after the last sentence in paragraph eleven:

The employee remains ineligible under Wis. Stat. § 108.04(2)(a)(2) until she completes a RES session.

Under the FINDINGS OF FACT AND CONCLUSIONS OF LAW, replace paragraph twelve with the following:

It is further found that the employee was paid benefits for weeks 7 through 14 of 2011, $88.00 for each week, amounting to $704.00 for which the employee was not eligible and to which the employee was not entitled, within the meaning of Wis. Stat. § 108.03(1) and that the entire amount must be repaid to the department because the overpayment was not because of any error by the department within the meaning of Wis. Stat. § 108.22(8)(a) and (c).


Under the DECISION paragraph, replace the Decision paragraph with:

"Accordingly, the employee is ineligible for benefits beginning in week 6 of 2011 and until the employee completes a RES session. The employee is required to repay the sum of $704.00 to the Unemployment Reserve Fund."

DECISION


The decision of the administrative law judge is modified, and as modified is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 6 of 2011 and until the employee completes a RES session. The employee is required to repay the sum of $704.00 to the Unemployment Reserve Fund.

Dated and mailed July 20, 2011
finchre : 135 : 7

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

MEMORANDUM OPINION

In her petition for commission review, the employee contends that she "tried calling the unemployment toll free number to reschedule a RES meeting but was unaware that if you missed two meetings you were no longer required to go." The employee claims that she is more than willing to go to a RES meeting and that she has never refused to go and therefore argues that her benefits should not be taken away.

In Gary R. Radke, UI Hearing Decision No. 06403168AP (LIRC, May 11, 2007), the commission held that a continuing suspension may be warranted in cases where a claimant refuses to participate in a RES meeting or program. The administrative law judge concluded that the facts here warranted a continuing suspension.

The employee could not recall the day of the week the job interview occurred that supposedly conflicted with her ability to attend the RES session on January 31, 2011. The employee submitted no documentation or other corroborating evidence that she attended a job interview on January 31, 2011 or had her interview during a time of the day that would have conflicted with her RES session appointment. The employee initially informed the adjudicator when this matter was being investigated that she simply forgot that session. Additionally, the employee missed the January 12, 2011 RES session allegedly for a job interview. The employee has made no attempts to reschedule another session and has not yet attended a RES session as of the date of the hearing held on April 4, 2011. Under these circumstances, the commission agrees that an indefinite suspension under Wis. Stat. § 108.04(2)(a)(2) is warranted until the employee completes a RES session.



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uploaded 2011/09/13