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

JEFFERY J COWDEN, Claimant

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01400979AP


O R D E R

Pursuant to authority granted in Wis. Stat. § 108.09(6)(d), the commission sets aside the June 8, 2001 appeal tribunal decision in this matter and remands the case to the department for de novo (new) hearing and decision by a department administrative law judge. In issuing her decision, the administrative law judge relied exclusively upon Wis. Stat. § 108.22(8)(c)2, which states that the action of reversing a lower decision "shall not be treated as establishing a departmental error" for purposes of determining whether an overpayment must be repaid by the claimant. It should be apparent, though, that this statutory provision means only that the reversal by the higher authority, in itself, is not evidence that the lower decision was the result of departmental error. Otherwise, the entire notion of departmental error would be read out of the statutes. The analysis in a case like this must be whether the proceedings by the department which led to the granting of benefits to the claimant, contained departmental error as defined in Wis. Stat. § 108.02(10e). Those proceedings include, finally, the adjudicator's reasoning in finding the claimant eligible for unemployment insurance in the same case in which the administrative law judge subsequently found that the claimant was ineligible for unemployment insurance and thus had to repay the benefits the adjudicator held the claimant was entitled to.

Dated and mailed August 6, 2001
cowdeje . usd : 105 : 1  BR 335  BR 335.01  BR 335.04

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


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uploaded 2001/08/10