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

DUANE A PALADINO, Employee

TEMPORARY OFFICE PERSONNEL INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 11610920MW


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 employer at issue is a temporary employment agency. The employee previously worked as a permanent employee of the employer's client until he was laid off in April of 2011, due to a lack of work. The status of his separation was changed to a termination in June of 2011 to permit him access to his 401(k) benefits. As a result, the employee was "brought in as a temporary employee through [the employer at issue]" when he returned to work for the client on August 16, 2011. The employee's last day of work was on September 16, 2011 (week 38).

The issue before the commission is whether the employee's employment was suspended because he was unable to perform or unavailable for work otherwise available with the employer and, if so, whether he was able to work and available for work in his general labor market. The ALJ found that the employee quit and, therefore, an alternative issue is whether the employee voluntarily terminated his employment for a reason that would permit the immediate payment of benefits.

In September of 2011, the employee notified the client that he was having rotator cuff surgery on September 19, 2011 (week 39), and would be absent for a period of time thereafter. The client instructed the employee to "take a leave of absence" and "contact them when [he] could return [to work]." The employee testified that he contacted the client during "the last week of October" with regard to returning to work. There was no firsthand evidence presented to dispute the employee's testimony. The employee's actions in notifying the client of his surgery, obtaining an approved leave of absence, and contacting the client in October were consistent with the continuation of the employment relationship. Nottelson v. ILHR Dept., 94 Wis. 2d. 106, 119, 287 N.W.2d 763 (1980); Tate v. Industrial Commission, 23 Wis. 2d. 1, 6 (1963). Therefore, the commission concludes that the employee did not quit, but his employment was suspended because he was unable to perform or unavailable for work otherwise available with the employer, within the meaning of Wis. Stat. § 108.04(1)(b)1.

As such, the remaining issue to be resolved is whether the employee was able to work and available for work in his labor market.

Wisconsin Admin. Code § DWD 128.01 provides, in relevant part:

(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.

* * *

(3) ABLE TO WORK. (a) Able to work means that the claimant maintains an attachment to the labor market and has the physical and psychological ability to engage in some substantial gainful employment in suitable work. During any week, a claimant is not able to work if the claimant is unable to perform suitable work due to a physical or psychological condition. In determining whether the claimant is attached to the labor market and able to perform suitable
work, the department shall consider all factors relevant to the circumstances of the case, which may include the following:

1. The claimant's usual or customary occupation.

2. The nature of the restrictions caused by the claimant's physical or psychological condition.

3. Whether the claimant is qualified to perform other work within the claimant's restrictions considering the claimant's education, training, and experience.

4. Occupational information and employment conditions data and reports available to the department showing whether and to what extent the claimant is able, within his or her restrictions, to perform suitable work in his or her labor market area.

The employee admitted that he was unable to perform any work during the week ending September 24, 2011 (week 39), due to his surgery. He testified: "I was not able and available for full-time work because of the surgery, medications and the restrictions. I think there were three weeks involved. Starting October 31st, is when I was able and available for full-time work with restrictions." The ALJ did not make a finding with regard to whether the employee was able to work despite his restrictions. The employee provided medical documentation with his petition for commission review to support his argument that he was able to work and available for work as of October 31, 2011 (week 45). This matter should be remanded to the department for a determination as to whether, in week 45 of 2011, the employee became available for work based upon the change in his physical restrictions.

The final issue that must be determined is whether the employee has received any benefits in error, the amount of those overpaid benefits, and whether those benefits must be repaid to the department.

The employee received benefits totaling $1,062 (paid for weeks 39 through 41 of 2011), for which he was not eligible and to which he was not entitled because he was unable to work. The employee was paid benefits in error, due in part to the employee's failure to provide the department with correct and complete information concerning his ability to work. While that failure may not be equivalent to willfully concealing information, it nonetheless prevents waiver of repayment of the overpaid benefits. Moreover, the erroneous payment of benefits was not due to any error on the part of the department because the decision to initially pay benefits was appropriate, given the information then available.

The commission therefore finds that, in week 38 of 2011, the employee did not voluntarily quit his employment, within the meaning of Wis. Stat. § 108.04(7).

The commission further finds that, in week 38 of 2011, the employee's employment was suspended because the employee was unable to perform, or unavailable for, suitable work otherwise available with the employer and that the employee was unable to work, or unavailable for work, within the meaning of Wis. Stat. § 108.04(1)(b)1.

The commission further finds that the employee was paid benefits in the amount of $354 for weeks 39 through 41 of 2011, amounting to a total of $1,062, for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03 (1), and pursuant to Wis. Stat. § 108.22 (8)(a), he is required to repay such sum to the Unemployment Reserve Fund.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits as of week 38 of 2011, and until he is able to work and available for work. The matter is remanded to the department for a determination as to whether, in week 45 of 2011, the employee was able to work and available for work based upon the change in his physical restrictions. The employee is required to repay the amount of $1,062, to the Unemployment Reserve Fund.

Dated and mailed March 21, 2012

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner


paladdu . urr : 102 : 1

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 unemployment insurance 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.

 


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