P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)



Hearing No. 08602681RC

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:


The employee worked for three years as a cashier for the employer, a convenience store. Her last day of work was September 24, 2007 (week 39).

After an altercation with the employer in September, 2007, the employee was discharged. On December 18, 2007 (week 51) the employer, understanding that the employee had gotten her medical condition which was partially responsible for the altercation under control, sent her a registered letter offering her the job back. He heard nothing from the employee.

On January 8, 2008 (week 2) the employee spoke to the employer in person. She indicated she was still having dizzy spells but was going to see a doctor about them. The employer said he would need a doctor's release telling him that she was able to return to work. In week 3, the employee brought a blank DWD form UCB-474, a medical report, to the employer. The employer told the employee it would have to be filled out and signed by a doctor before she returned to work. The following day the employee telephoned the employer to say she had a doctor's release and the employer told her to have him fill out the 474. He never heard from the employee again.

The issue to be decided is whether the employee failed to accept an offer of suitable work and, if so, whether good cause existed for not accepting.

Since the employee received actual notice of the offer from the employer, the issue is properly evaluated under the offer of suitable work section of the statute.

Wis. Stat. § 108.04(8)(a) provides in part as follows:

If an employee fails, without good cause, to accept suitable work when offered, the employee is ineligible to receive benefits until 4 weeks have elapsed since the end of the week in which the failure occurs and the employee earns wages after the week in which the failure occurs equal to at least 4 times the employee's weekly benefit rate under s. 108.05 (1) in employment or other work covered by the unemployment insurance law of any state or the federal government.

The employer made the employee a bona fide offer of work which was conditioned on a medical release from her doctor. In week 3, the employee indicated that she had such a release and was directed to have the appropriate forms completed and sent to the employer. It is undisputed that the employee did not personally contact the employer again. Although the employee testified that she expected her doctors to send the forms to the employer, she took no steps to confirm this or contact the employer about her start date. She took no further steps to resume her employment.

The employee's medical records indicate that she is able to do her work for the employer. The employee has offered no other basis for a finding that she had good cause not to accept the offer of work.

The commission therefore finds that in week 3 of 2008 the employee failed to accept an offer of suitable work and that the wages, hours and other conditions of the work offered the employee were not substantially less favorable than existed for similar work in her labor market, and the employee did not establish good cause for failing to accept the offered work, within the meaning of Wis. Stat. §§ 108.04(8)(a) and (c) and 108.04(9).

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 employee. 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 ALJ found that the employee had good cause for her failure to accept a recall to work. The ALJ made no findings in support of his conclusion and misapplied the law. The commission concludes that the overpayment of benefits was the result of department error.

The commission further finds that due to department error and not due to any action by the employee, the employee was paid benefits for weeks 3 through 11 of 2008 in the amount of $1,557.00, for which the employee was not eligible and to which the employee was not entitled, within the meaning of Wis. Stat. § 108.03(1) but that recovery of the benefits paid shall be waived, within the meaning of Wis. Stat. § 108.22(8)(c).


The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 3 of 2008, and until four weeks have elapsed since the end of the week in which the failure occurred and the employee has earned wages in covered employment after the week of the failure equal to four times the weekly benefit rate that would have been paid had the failure not occurred. Recovery of the overpaid benefits for weeks 3 and 11 of 2008, in the amount of $1,557.00 is waived. The employee is not required to repay the department, nor will the overpaid benefits be recovered by any other means. The appropriate employer account(s) will be credited immediately with the overpaid amount.

Dated and mailed August 15, 2008
bennesu . urr : 178 : 1 SW 845.03 : SW 835.07 : BR 335

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner


The commission does not reverse due to any differing assessment of witness credibility but as a matter of law.

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