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

MITCHELL J WINDORF, Employe

MASTER FLEET BODY & HOIST, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99402161AP

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:

Delete the final paragraph on page 3 of the Appeal Tribunal Decision and substitute therefor:

At the time the employe opened his benefit claim in week 39 of 1999, it was recorded by the claimstaker that he had been discharged. The employe attempted to explain to the claimstaker the circumstances surrounding his separation of employment but the claimstaker limited him to answering the question, "Did someone tell you that was your last day of work?", to which the employe answered truthfully in the affirmative. The employer, in its claim investigation statement indicated that it did tell the employe that September 17, 1999 would be his last day of work because in June he notified the employer he would be looking for other work. The parties agreed that he would leave at some indefinite time in the future. The adjudicator therefore determined that the employe was discharged. However, at the hearing, it became apparent that there was an agreement between the employer and the employe to continue his employment for an unspecified length of time. It was clear that the employe was the moving party in the termination of employment. The appeal tribunal cannot conclude that the initial determination was the result of department error but because the claimstaker's decision was made without benefit of the full hearing held by the Administrative Law Judge.

DECISION

The decision of the administrative law judge, as modified, is affirmed. Accordingly, the employe is ineligible for benefits beginning in week 38 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 performed after the week of quitting equaling at least four times the employe's weekly benefit rate which would have been paid had the quitting not occurred. The employe is required to repay the sum of $1,438 to the Unemployment Reserve Fund.

Dated and mailed December 22, 1999
windomi.umd : 145 : 6  BR 335.04

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

In his petition for commission review the employe asserts that he believes that his overpayment was the result of department error. The employe asserts that he answered all the claimstaker's questions truthfully, and that therefore the claimstaker erred when determining that he quit. However, reversal of the initial determination alone does not amount to department error. The material in the file regarding the investigation, combined with the employe's testimony on the issue, suggests that the initial determination was based in part on information provided by the employer. However, based on the record made at the hearing, it became apparent that the employe quit his employment and was not discharged. The initial determination is generally made without full information as to the underlying issue, but that is because the claimstaker does not have access to as much information as the ALJ. There may be circumstances where a claimstaker's failure to ask for information would amount to department error, but in this case, it would reasonably appear to the claimstaker that he had sufficient information to make his decision. Therefore, the overpayment caused by the ALJ's reversal of the initial determination was not the result of department error.

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