Craig J. Lewko VS Kurt Eysink, Administrator, Louisiana Workforce Commission
Annotate this Case
Download PDF
STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2012 CA 1015 i CRAIG J LEWKO VERSUS 1 1 i KURT EYSINK ADMINISTRATOR 7ud 9 ment Rendered v AR P 2 2013 On Appeal from the Twenty Judicial District Court First In and for the Parish of Tangipahoa State of Louisiana No 2011 0002692 Honorable Elizabeth P Wolfe Judge Presiding Thomas J Hammond Cynthia Hogan r Counsel for Plaintiff Appellant Louisiana T Batiste Louisiana Workforce Commission Craig J Lewko Counsel for Defendant Appellee Kurt Eysink Administrator Baton Rouge Louisiana BEFORE WHIPPLE C McCLENDON AND HIGGINBOTHAM 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 judgment also affirmed the decision of the Board that the plaintiff was overpaid and that the waiver of overpayment was correctly denied For the reasons that follow we affirm FACTS AND PROCEDURAL HISTORY The plaintiff Craig Lewko was employed by Amerigas Propane Inc Amerigas on April 6 2009 as a full service technician until March 19 time 2010 when he voluntarily quit his position as a part yard maintenance time worker Thereafter Mr Lewko filed for unemployment compensation benefits with the Louisiana Workforce Commission LWC and began receiving benefits After twenty weeks Mr Lewko filed for e benefits which he also six ended 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 for the period from April 10 2010 to October 2 2010 and 00 656 the second in the amount of 5for the period from October 9 2010 to 00 788 March 19 2011 Mr Lewko appealed the agency determinations Following hearings before an administrative law judge AU 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 and 5 were 00 656 00 788 affirmed Board Dissatisfied with the decisions Mr Lewko filed a timely appeal to the After considering the record law arguments and submissions of the 1 The Board of Review is within the Office of Unemployment Insurance Administration in the Louisiana Department of Labor See LSA 23 and 1652 S R 1651 2 Ii parties the Board adopted the findings of faet and conclusions of law of the AU and affirmed her decisions in all respects On August 16 2011 Mr Lewko filed a Petition for Judicial Review in the 21 Judiciai District Court naming as the defendant Kurt Eysink Administrator of the LWC After considering the record argument of counsel and the law the district court on February 13 2012 affirmed the Board decisions s Mr Lewko appealed STANDARD OF REVIEW Our scope of review is set forth in LSA 23 which provides in S R 1634B 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 evaluation reof evidence or substituting the views of this court for those of the Board as to the correctness of facts Fontenet v Cypress Bayou Casino 06 0300 La 1 Cir 6 964 So 1035 1038 Accordingly the scope of App 07 8 2d appellate review in this matter is limited to determining whether the facts are supported by sufficient and competent evidence and whether the facts as a matter of law justify the action taken See Fontenot 964 So at 1038 2d DISCUSSION Disqualification 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 employee and that his employer would time require him to pay back vacation he had already taken Louisiana Revised Statutes 23 provides in pertinent part a 1 1601 An individual shall be disqualified for benefits a 1 If the administrator finds that he has left his employment from a base period or subsequent empioyer without good cause Z The administrator is the executive director of the LWC and shall be deemed to be a party to any such proceeding See LSA 23 S 1and 23 R 1472 634 3 I attributable to a substantial change made to the employment by the employer Good cause connected with a person employment means a cause s connected with working conditions ability caf the employee to continue the employment availability of transportation to and from work and other factors that affect the employee ability or right to orotinue work or that affects the s benefits he may receive from his employer either upon continuation of the work or on retirement Gonzales Home Health Care L v Felder 08 C 0798 App La 1 Cir 9 994 So 687 693 writ not considered 08 La 08 26 2d 2568 09 9 1 998 So 730 2d It is good cause connected with employment for an employee to quit his job when the work becomes unsuitable due to unanticipated working conditions Id However personal reasons for resigning employment are not good cause connected with employment Lewis v Administrator 540 2d So 491 495 La 1 Cir 1989 Thus mere dissatisfaction with working App conditions does not constitute good cause unless the dissatisfaction is based on discrimination unfair or arbitrary treatment or is based upon a substantial change in wages or working conditions from those in force at the time the sposition began Gonzales Home Health Care L 994 So at claimant C 2d 693 At the hearing Mr Lewko testified that he did not feel comfortable performing the duties of the full technician that he was hired to do time Therefore he requested another position and when a part position in the time 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 he time asked the Amerigas representative whether he was entitled to vacation and she told him she would have to check with Amerigas scorporate office Mr Lewko testified that he kept asking about vacation and on March 19 2010 he was told that he was noY entitled to vacation pay because he had not worked full for time 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 employee for eleven and one time 4 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 and Replaced position reduced pay not position 10 11 applied for Additionally in his internet application to e his benefits on end 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 lowered pay denied vacation benefit T The record further shows that when Mr Lewko was hired by Amerigas on April 6 2009 he signed a Vacation Holiday Policy Acknowledgement Floating 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 AU made the following findings of fact with regard to Mr Lewko s disqualification The claimant worked for the named employer from April 6 2009 to March 19 2010 He was a part time Yard 00 helper Maintenance earning 12 an hour In September 2009 the claimant told the manager he would like to go to other work because he felt a lack of training in his job A part time job was found for the claimant and he took it when a replace ment was found for him On March 1 2010 the claimant began the part This was Mr Lewko position when he ceased employment with Amerigas s 5 time job He asked the employer about the vacation pay on his check The manager check with payroli on March 22 2010 ed she found that the claimant would have to pay back 40 hours of vacation pay because he had r worked one year full time which ot is policy of which the claimant signed The claimant did not feel he should have to repay the vacation pay so he quit on March 22 2010 due to having to repay the vacation pay The AU concluded The testimony and evidence in this case indicates the claimant left employment because he would have to repay vacation pay Policy is that you work one year before earning vacation pay The claimant was not entitle to the vacation pay and did sign d the policy The claimant has failed to show that his leaving was for good cause attributable to a substantial change made to the employment by the employer Based on the stated findings of fact the AU 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 AU 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 Overoavment and Waiver 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 s LWC right of recovery should have been waived The waiver of the right of recovery is found in LSA 23 which S R 1713 provided in pertinent part A If the administrator finds that an individual has received any payment under this Chapter to which the individual was not entitled such individual shall be liable to repay such amount to the administrator for the unemployment compensation fund upon demand and in accordance with agency regulations a sum equal to the amount so received by the recipient in addition to any penalties assessed as provided in R 23 and in accordance S I714 with R 23 through 1749 If the claimant disagrees with S 1740 such determination or assessment of overpayment he shall have 4 Acts 2012 No 344 1 rewrote subsection B 6 the same right to fil an appeal as n any other determination as provided in R 1629 et seq for administrative and judicial S remedies B The issue of waiver of the right of recovery of any overpayment of benefits shall be heard upon any appeal of such determination or assessment of overpayment The appeal referee board of review any court of jurisdiction or the administrator pursuant to the conditions under Subsection C may waive the right of recovery of any overpaid benefits received by any person who has received such benefits under this Chapter while any conditions for the receipt thereof were not fulfilled in his case or while he was disqualified from receiving such benefits provided that the receipt of said benefits did not come within the fraud provisions of R S 8 1601 23 the overpayment was without fault of the claimant and the recovery thereof would defeat the purpose of benefits othenvise authorized or the recovery thereof would be against equity and good conscience Further Section 369 of Title 40 Part IV of the Louisiana Administrative Code provides in pertinent part A A waiver of the overpayment may be granted only if 1 the claimant was without fault in causing the overpayment and 2 repayment would be against equity and good conscience B 1 To determine if fault existed on the part of the claimant it must be estabiished whether the claimant a gave inaccurate information b failed to disclose a material fact c knew or should have known that he is not entitled to the she benefits d caused the overpayment by an act of omission of information known to the claimant or e had a determination of ineligibility due to fraud 2 An affirmative finding on any one of the above precludes waiver of the overpayment C Regardless of fault for the overpayment the following factors must also be considered to determine if repayment would be contrary to equity and good conscience 1 whether recovery of the overpayment would cause extraordinary financial hardship to the claimant for at least three months a efinancial hardship shall be considered inability to raordinary obtain minimal necessities of living b all cash resources and income of the claimant as weli as of the family of the claimant shall be considered 2 whether the overpayment was the result of a decision on appeal 3 whether claimant was given notice that a reversal on appeal would result in overpayment 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 7 due to job dissatisfaction Mr Lewko also maintains that the LWC failed to give prompt notice of its determination of the clafm as required by LSA 23 S R 1624 and 1625 and therefore the LWC sf be estopped from seeking repayment ould 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 redueed 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 AU made the following factuai findings with regard to the 6 00 656 overpayment and request for waiver The claimant filed a claim effective March 21 2010 On March 22 2010 the claimant reported to the Agency that he worked part time hours for Amerigas Propane reduced On October 14 2010 the claimant reported his separation from Amerigas Propane was for lack of work in force reduction On February 23 2011 the claimant renewed his claim and gave no new empioyment information The Agency paid the claimant for weeks ending April 10 2010 to October 2 2010 because of the information he gave When the Agency be aware in March came 2011 that the ciaimant had quit his employment he was disqualified effective March 11 2010 causing the overpayment of 00 6656 in benefits for the weeks ending April 10 2010 to October 2 2010 which was during a period of disqualification The claimanYs sic furnished waiver information showing money tha t can be used to repay the over payment The AU concluded The testimony and evidence in this case indicates the claimant was overpaid 6656 in benefits for the weeks ending 00 Aprii 10 2010 to October 2 2010 due to failure to report Therefore the claimant caused the separation issue properly payment over by not reporting separation information properly A waiver can not be granted because the claimant is not financially unable to repay the money With regard to the 5 overpayment and request for waiver the 00 788 AU determined The ciaimant filed an e ended benefit claim effective October 3 2010 on Marcf 22 2010 the claimant reported to the Agency that he worked park time hours for Amerigas reduced Propane On October 14 2010 the claimant reported his separation from Amerigas Propane was for lack of work reduction 5 Although Mr Lewko attempts to make the argument that he was not notified of the determination of eligibiliry the record reFlects that he was properly notified of his disqualification in accordance with LSA 1625 23 S R 8 in force On February 23 2011 the claimant renewed his claim and gave no new employnnent information The Agency paid the claimant for weeks ending October 9 2010 to March 9 2011 because of the information he gave When the Agency be came aware in March 2011 thak the claimant he was disqualified effective March overpayment of 5788 in benefits for 00 9 2010 to March 19 2011 which The disqualification ciaimanYs had quit his employment 11 2010 causing the the weeks ending October was during a period of furnished waiver information showing money tha can be used to repay the over t payment The AU concluded The testimony and evidence in this case indicates the claimant was overpaid 5788 in benefits for the weeks ending 00 October 9 2010 to March 19 2011 due to failure to report separation issue properly Therefore the claimant caused the payment over by not reporting separation information properly A waiver can not be granted because the claimant is not financially unable to repay the money Based on the stated findings of fact the AU affirmed the agency determinations that Mr Lewko was overpaid 6and 5in benefits 00 656 00 788 I 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 AU which were affirmed by the Board The facts justify the conclusion that Mr Lewko was overpaid 00 656 6 in benefits for the weeks ending April 10 2010 to October 2 2010 and 5 in benefits for the weeks ending October 9 2010 to March 19 00 788 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 decision was s correct as a matter of law CONCLUSION For these reasons the March 12 2012 judgment of the district court is affirmed Costs of this appeal shali be assessed against the plaintiff Craig J Lewko AFFIRMED 9
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
