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

MARILYN STRONG, Employe

WILLIAM K WALTHERS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98608280MW

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 the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Up to the week of issue, the employe had worked since December 8, 1997 (week 50) as a distribution center worker. Prior to the week in question, she had been absent for the majority of the preceding two weeks due to a physical condition.

During the week in question, and at all times material, the employer permitted workers to schedule time off and work flexible hours as long as 40 hours of work were achieved. The employe did not work a full day on any of the five days during week 44 of 1998. She missed all or a portion of each day Monday through Thursday due to medical appointments or residual discomfort from a medical condition. She did not work on Friday due to scheduled time off on personal business. Had the employe worked all 40 hours available to her in the period Monday through Friday, she would have earned gross wages of $272.00.

The issue to be decided is whether the employe was with due notice called on by the current employing unit to report for work actually available in week 44 of 1998, whether the employe was available for that work, and the amount of wages the employe would have earned by performing all work available in that week.

The employe was regularly scheduled for at least 40 hours of work, between the hours of 7:30 a.m. and 4:00 p.m., Monday through Friday. These were the core hours regularly available to her. The fact that the employe requested Friday off, that is 8 hours of work off, and the employer granted the request, does not change the fact that she was scheduled to work. The regular schedule constituted due notice of work available. The fact that she asked for and was granted Friday off does not change the fact that the she was aware that she could have worked 8 hours on that day. Had the employe performed all work available in week 44 of 1998 she could have worked 40 hours in that week at $6.80 per hour for total wages of $272.00. The employe's weekly benefit rate is $135.00. Under Wis. Stat. § 108.05(3), the employe's benefits must be reduced by $162.14. Therefore, the employe is not entitled to any benefits in week 44 of 1998.

The commission therefore finds that in week 44 of 1998, the employe was with due notice called on by her current employing unit to report for work actually available within the week and was unavailable for, or unable to perform, some or all of such available work, within the meaning of Wis. Stat. § 108.04(1)(a).

The commission further finds that had the employe performed all available work in week 44 of 1998, she could have earned wages totaling $272.00 resulting in a weekly benefit payment totaling $0.00, within the meaning of Wis. Stat. § 108.02(26) and Wis. Stat. § 108.05(3).

The commission further finds that the employe was paid benefits in the amount of $9.00 for week 44 of 1998, for which she was not eligible and to which she 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.

Wisconsin Statute § 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 employe. Under Wis. Stat. § 108.02(10e)(a) and (b), department 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, or from misinformation provided to a claimant by the department, on which the claimant relied.

The overpayment in this case results from the commission's reversal of the appeal tribunal decision. Such reversal was not due to department error as defined in Wis. Stat. § 108.02(10e)(a) and (b). Rather, the commission has reached a different legal conclusion when applying the law to the facts found.

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

DECISION

The decision of the administrative law judge is modified to conform with the foregoing findings and, as modified, is reversed. Accordingly, benefits will be reduced by including in the computation of benefits payable the amount of $272.00 as wages the employe would have earned had the employe performed all of the available work. The employe is not eligible for a weekly benefit payment. She is required to repay the sum of $9.00 to the Unemployment Reserve Fund.

Dated and mailed: February 5, 1999
stronma.urr : 132 : 1 AA 110

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did not consult with the administrative law judge regarding witness credibility and demeanor. The commission does not disagree with any credibility determination made by the administrative law judge. Rather, the commission has reached a different legal conclusion when applying the law to the facts.

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.

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