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


BENJAMIN L WEIHER, Claimant

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01601369RC


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.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, as of week 53 of 2000, benefits otherwise payable for any week of partial or total unemployment are reduced by $241.54.

Dated and mailed May 17, 2001
weihebe . usd : 132 : 1  UW 980

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The claimant has petitioned for commission review of the adverse appeal tribunal decision that found that as of week 53 of 2000 he was actually and constructively receiving a pension payment in the amount of $1,046.54. The claimant maintained at the hearing that he did not actually and constructively receive the $384.57 payment assigned to his wife under a Qualified Domestic Relations Order. The commission cannot agree. The plain language of the statute, in particular Wis. Stat. § 108.05(7)(g), establishes that the claimant actually or constructively receives the entire pension amount. The only evidence in the record, based on the claimant's testimony and the copy of the monthly pension direct deposit, is that that the "closing bonus" is paid out of the pension fund thus making such bonus a "pension payment" pursuant to Wis. Stat. § 108.05(7).

The commission is not unsympathetic to the claimant's argument. Nevertheless, the language of the statute, as it has been created by the Legislature, requires the result reached. The commission is required to apply the statute as it is written and has no authority to deviate from its plain language. While such language results in a decision adverse to the claimant, this reflects the Legislature's intent in cases such as these. The claimant should address his concerns regarding the application of Wis. Stat. § 108.05(7), to the body that has the authority to change the law, the Legislature.


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uploaded 2001/05/18