McCLENDON, J.
In this unemployment compensation case, the plaintiff appeals the judgment of the district court, affirming the decision of the Louisiana Board of Review (Board) that disqualified the plaintiff from receiving unemployment compensation benefits.
The plaintiff, Craig Lewko, was employed by Amerigas Propane, Inc. (Amerigas) on April 6, 2009, as a full-time service technician, until March 19, 2010, when he voluntarily quit his position as a part-time yard maintenance worker. Thereafter, Mr. Lewko filed for unemployment compensation benefits with the Louisiana Workforce Commission (LWC) and began receiving benefits. After twenty-six weeks, Mr. Lewko filed for extended benefits, which he also received. In March 2011, the LWC discovered that Mr. Lewko voluntarily left his employment because he was dissatisfied with the working conditions and determined that he was disqualified from receiving benefits effective March 11, 2010. The LWC also assessed Mr. Lewko with two overpayments, one in the amount of $6,656.00 for the period from April 10, 2010 to October 2, 2010, and the second in the amount of $5,788.00 for the period from October 9, 2010 to March 19, 2011. Mr. Lewko appealed the agency determinations. Following hearings before an administrative law judge (ALJ), conducted by telephone conference on July 26, 2011, the decisions of the LWC disqualifying Mr. Lewko from receiving unemployment benefits, denying his requests for a waiver of overpayment, and finding that he was overpaid $6,656.00 and $5,788.00, were affirmed. Dissatisfied with the decisions, Mr. Lewko filed a timely appeal to the Board. After considering the record, law, arguments, and submissions of the parties, the Board adopted the findings of fact and conclusions of law of the ALJ and affirmed her decisions in all respects.
On August 16, 2011, Mr. Lewko filed a Petition for Judicial Review in the 21
Our scope of review is set forth in LSA-R.S. 23:1634B, which provides in pertinent part that "the findings of the board of review as to the facts, if supported by sufficient evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the court shall be confined to questions of law." Thus, judicial review does not permit the weighing of evidence, drawing of inferences, re-evaluation of evidence, or substituting the views of this court for those of the Board as to the correctness of facts.
In his appeal, Mr. Lewko asserts that he had good cause for leaving Amerigas. He asserts that he should have been told that he would not be eligible for vacation pay as a part-time employee and that his employer would require him to pay back vacation he had already taken.
Louisiana Revised Statutes 23:1601(1)(a) provides, in pertinent part:
Good cause connected with a person's employment means a cause connected with working conditions, ability of the employee to continue the employment, availability of transportation to and from work, and other factors that affect the employee's ability or right to continue work or that affects the benefits he may receive from his employer either upon continuation of the work or on retirement.
At the hearing, Mr. Lewko testified that he did not feel comfortable performing the duties of the full-time technician that he was hired to do. Therefore, he requested another position and when a part-time position in the yard became available, he took it. He admitted that the move to part-time employment was voluntary. Mr. Lewko testified that after he went part-time, he asked the Amerigas representative whether he was entitled to vacation, and she told him she would have to check with Amerigas's corporate office. Mr. Lewko testified that he kept asking about vacation, and on March 19, 2010, he was told that he was not entitled to vacation pay because he had not worked full-time for a year and was also told that he would have to repay the vacation pay advanced to him. Mr. Lewko stated that he was a full-time employee for eleven and one-half months and thought his vacation pay should have at least been prorated. He stated that he felt as if he had been used, and he got upset and "walked."
The record shows that on March 22, 2010, Mr. Lewko filled out an internet application for unemployment benefits and provided that the reason for separation from Amerigas was "Part time or reduced hours." In the application, Mr. Lewko also commented that the "reduction in pay was due to replacement of position and new position was not what applied for." Mr. Lewko testified that he went to the LWC office when he first filed for benefits, and he filled out a form, dated March 26, 2010, regarding his reason for separation from Amerigas, and provided: "Quit 3-11-10" and "Replaced position, reduced pay, not position applied for." Additionally, in his internet application to extend his benefits, on February 23, 2011, Mr. Lewko again provided that the reason for separation from Amerigas was "Part time or reduced hours." Mr. Lewko also submitted another form to the LWC, dated March 29, 2011, for the extension of his benefits, and provided as his reason for separation: "Quit — due to unsafe work conditions, reduced to P/T, lowered pay, denied vacation benefit."
The record further shows that when Mr. Lewko was hired by Amerigas, on April 6, 2009, he signed a Vacation/Floating Holiday Policy Acknowledgement. The acknowledgement provided, in part, that "no vacation is actually earned until I have completed one year of service." He further agreed that "if termination occurs for any reason prior to my anniversary date (within the first year of employment) . . . the Company has the right to deduct the full amount of any vacation pay advanced to me prior to termination of my employment."
The ALJ made the following findings of fact, with regard to Mr. Lewko's disqualification:
The ALJ concluded:
Based on the stated findings of fact, the ALJ affirmed the agency determination that Mr. Lewko was disqualified from benefits effective March 11, 2010.
We have thoroughly reviewed the record and find that the evidence sufficiently supports the findings of fact of the ALJ, which were affirmed by the Board. Further, based on our review of the law, the evidence justifies the conclusion that Mr. Lewko was not eligible to receive unemployment compensation benefits based on his voluntary resignation, and thus, the Board's decision was legally correct.
Mr. Lewko also argues that because any overpayment of unemployment compensation benefits paid to him was not due to any fault on his part, the LWC's right of recovery should have been waived.
The waiver of the right of recovery is found in LSA-R.S. 23:1713,
Further, Section 369 of Title 40, Part IV of the Louisiana Administrative Code provides, in pertinent part:
Mr. Lewko maintains that the right of recovery should have been waived because the overpayment occurred without his fault, and ordering repayment in this case would be against equity and good conscience. He asserts that he reported to the LWC that he quit and also that Amerigas reported that he left due to job dissatisfaction, Mr. Lewko also maintains that the LWC failed to give prompt notice of its determination of the claim as required by LSA-R.S. 23:1624 and 1625 and, therefore, the LWC should be estopped from seeking repayment.
As previously stated, when Mr. Lewko initially applied for unemployment compensation benefits, he indicated that his reason for separation was due to a replaced position, reduced hours, and reduced pay. However, his testimony revealed that he left for personal reasons. Mr. Lewko also submitted financial information that showed he had the ability to repay the overpaid amounts.
The ALJ made the following factual findings with regard to the $6,656.00 overpayment and request for waiver:
The ALJ concluded:
With regard to the $5,788.00 overpayment and request for waiver, the ALJ determined:
The ALJ concluded:
Based on the stated findings of fact, the ALJ affirmed the agency determinations that Mr. Lewko was overpaid $6,656.00 and $5,788.00 in benefits and that denied a waiver for those amounts.
Again, based on a thorough review of the record, we find that the evidence sufficiently supports the findings of fact of the ALJ, which were affirmed by the Board. The facts justify the conclusion that Mr. Lewko was overpaid $6,656.00 in benefits for the weeks ending April 10, 2010 to October 2, 2010, and $5,788.00 in benefits for the weeks ending October 9, 2010 to March 19, 2011. Further, the facts support the determinations that Mr. Lewko caused the overpayments and that he was financially able to repay the overpaid amounts. After our review of the law, we also conclude that the Board's decision was correct as a matter of law.
For these reasons, the March 12, 2012 judgment of the district court is affirmed. Costs of this appeal shall be assessed against the plaintiff, Craig J. Lewko.
