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


MAURICE J WILLIAMS, Employe

P A STAFFING SER INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99605153MW


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 as a laborer for the employer, a temporary help agency. He last worked for the employer on August 19, 1998 (week 34). The employer had no additional work available and the employe was laid off. Nine months later the employer attempted to contact the employe via telephone to offer him work. However, his number was disconnected. On April 28, 1999 (week 18), the employer sent the employe a letter via certified mail, offering him a position as a sweeper, on first shift, earning $6.50 per hour. The wages, hours and other conditions of that work were not substantially less favorable to the employe than existed for similar work in his labor market. The letter asked the employe to respond within one week to discuss the job. The employe did not respond. On April 29, 1999, the postal service returned to the employer the signature portion of the certified mail receipt with a signature "Maurice WMS."

The issue to be decided is whether the employe failed to accept an offer of work and, if so, whether he had good cause for such refusal.

The employe maintained that he did not sign the signature portion of the certified mail receipt. The employe opined that the downstairs neighbors might have signed for it, noting that the neighbor had signed for bank checks in the past. The employe also maintained that he would never abbreviate his last name, and if he had to abbreviate because of limited space, would have abbreviated his first name.

The commission does not find the employe's testimony that he did not receive the offer of work to be credible. Even accepting that an unnamed neighbor once in the past signed for checks for the employe, does not explain why a neighbor would sign at least a portion of the employe's name on the receipt. That is, while a neighbor may sign for the employe, it is unlikely the neighbor would do so using the employe's name. It is even less likely that the neighbor would go a step further and abbreviate the employe's name. Finally, the signature on the receipt looks quite similar to the employe's signature on various documents in the record

The wages, hours (including arrangement and number), and other conditions of the work offered were not substantially less favorable to the employe than those prevailing for similar work in the employe's labor market area; and the employe, as a claimant for unemployment benefits, was not for any other reason justified in failing to accept that work.

The commission therefore finds that in week 18 of 1999 the employe failed, without good cause, to accept an offer of suitable work, within the meaning of Wis. Stat. § 108.04(8)(a).

The commission further finds that the employe was paid benefits in the amount of $2278.00 for weeks 18 through 33 of 1999, for which the employe was not eligible and to which the employe 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 reversed. Accordingly, the employe is ineligible for benefits beginning in week 18 of 1999, and until four weeks elapse since the end of the week in which the failure occurred and the employe has earned wages in covered employment after the week of failure equal to at least four times the weekly benefit rate which would have been paid had the failure not occurred. He is required to repay the sum of $2278.00 to the unemployment reserve fund.

Benefits otherwise chargeable to a contribution employer's account will be charged to the fund's balancing account whenever an employe of that employer fails, without good cause, to accept suitable work offered by that employer.

Dated and mailed October 28, 1999
willima.urr : 132 : 6 : SW 800

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did discuss witness credibility and demeanor with the ALJ. The ALJ found the employe a sincere and credible witness. However, for reasons set forth in its decision the commission disagrees with the ALJ's credibility assessment and reverse the appeal tribunal decision.


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