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


JERRY E VILLERS, Employe

CORPORATE EXPRESS DELIVERY SYSTEMS MID WEST INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99400349GB


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 employe worked 13 months as a courier for the employer, an express delivery business. On January 18, 1999, he was diagnosed with "cough syncope," which caused the employe to lose consciousness when he would cough. The doctor indicated that the condition could be monitored and controlled, but according to state law, the employe would not be able to drive a vehicle for three months. The employe sent the employer a copy of the off work slip on January 18. He then consulted a neurologist who confirmed the treating physician's diagnosis. He was released to work on January 23, 1999 (week 4), subject to the restriction that he was unable to drive until April of 1999. The employer had no work for him within those restrictions, but offered to place the employe on family medical leave for the period of his restricted availability. On February 15, 1999 (week 8) the employe advised the employer that he did not want to be on FMLA. The employer advised him that FMLA was the only medical leave available. When the employe declined the FMLA the employer considered that he quit his employment. The employe refused the employer's offer of FMLA leave because a UI representative advised him that if he went on such leave he would be ineligible for UI.

The employe has experience in forklift operation, pizza delivery, order picking in a warehouse, and farm laboring. Considering the employe' s restriction against driving, he would be able to perform approximately 23% of the suitable jobs in his labor market.

The initial issue to be decided is whether the employe quit his position or was discharged. The second issue is whether he is eligible for benefits based on his separation from employment.

The commission finds that the employe voluntarily terminated his employment by refusing to accept the family medical leave offered by the employer. He had the option of continuing the employment relationship, but chose to end the relationship. He did not establish that he was unable to do his work and had no reasonable alternative but to quit his employment. Accepting the employer's offer of family medical leave was a reasonable alternative to quitting in this case. While it was not a certainty that the employe would be able to return to work in April, it was also not certain that the employe would be unable to return in April. Accepting family medical leave would have allowed the employment relationship to continue until the employe's status was reexamined in April. If at that time the doctor determined that the employe still could not return to work, then ongoing leave without evidence that the employe would be able to return to work would constitute exhaustion of his reasonable alternatives. In this case, however, where there are indications that the employe's condition was temporary, or at least his condition could ultimately be controlled so that he could return to driving, it was a viable option to accept the leave of absence.

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 therefore finds that in weeks 4 through 7 the employe's employment was suspended under Wis. Stat. § 108.04(1)(b)1, because he was unable to perform suitable work otherwise available with the employer but that he was able to work and available for work in those weeks on the general labor market.

The commission further finds that in week 8 of 1999, the calendar week ending February 20, the employe quit his employment within the meaning of Wis. Stat. § 108.04(7)(a), and not for any reason that would permit immediate benefit payment.

The commission further finds that the employe was paid benefits in the amount of $276.00 for weeks 8 through 29 of 1999, totaling $6,072 in unemployment benefits for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1).

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 reversed in part and affirmed in part. Accordingly, the employe is eligible for benefits in weeks 4 through 7 of 1999, if he is otherwise qualified. The employe is ineligible for benefits beginning in week 8 of 1999 and until four weeks have elapsed since the end of the week of quitting and the employe has earned wages in covered employment equal to at least 14 times the weekly benefit rate which would have been paid had the quitting not occurred. He is required to repay the sum of $6,072 to the Unemployment Reserve Fund.

Dated and mailed July 28, 1999
villeje.urr : 132 : 6 VL 1007.01 VL 1023.20

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did not discuss witness credibility and demeanor with the ALJ. The commission reverses because it reaches a different legal conclusion when applying the law to the facts.


cc: CORPORATE EXPRESS DELIVERY SYSTEMS

GREGORY A FRIGO
BUREAU OF LEGAL AFFAIRS


[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]