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


HARVEY J KELLIHER JR, Employee

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01600751WK


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:

Paragraphs four and five of the appeal tribunal's Findings of Fact and Conclusions of Law are deleted, and the following is substituted therefor:

The employee contended that his benefit amount should not be reduced because he began drawing his social security benefit amount long before he performed wage-earning services for either of his base period employers and that, consequently, those employers could not have contributed to his social security benefit eligibility. This contention cannot be sustained. Pursuant to Wis. Stat. § 108.05(7)(f), reduction in unemployment insurance occurs under one of two scenarios. The first is when one receives social security or railroad retirement benefits. Unemployment benefits are reduced by 50 percent of the weekly pension amount, for these two kinds of pension, regardless of whether there were contributions by base period employers or any other factors. Only the second scenario concerns private pension plans, and includes several additional qualifications before there can be a reduction in benefits. The second scenario is not relevant where, as here, the issue is the reduction for social security benefits received. There thus is no basis for not reducing the employee's benefits due to his social security benefits.


DECISION

The decision of the administrative law judge, as modified, is affirmed. Accordingly, as of week 1 of 2001, benefits otherwise payable for any week of partial or total unemployment are reduced by $127.98.

Dated and mailed April 17, 2001
kelliha . umd : 105 : 3   - UW 980

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

NOTE: The commission has modified the appeal tribunal decision to reflect the fact that the analysis performed by the administrative law judge, and by the employee in his petition for review, under Wis. Stat. § 108.05 (7)(f)2 (which requires analysis of base period employers), is irrelevant to the offset of social security or railroad retirement benefits under Wis. Stat.
§ 108.05 (7)(f)1.

cc: Arthur F. Owens


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uploaded 2001/05/09