MICHAEL F WOJTALEWICZ, Employee

THE COPPS CORP, Employer

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 modification:

The first, second, and fourth full paragraphs on page four of the appeal tribunal's FINDINGS OF FACT and CONCLUSIONS OF LAW are deleted.

The decision of the administrative law judge, as modified, is affirmed. Accordingly, the employee is not receiving monies to be treated as sick pay or wages, and he is eligible for benefits beginning in week 47 of 2000, if otherwise qualified.

Dated and mailed September 14, 2001
wojtami . umd : 164 : 1   BR 346 UW 975 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

In the petition for commission review the employer correctly points out that, under Wis. Stat. § 108.02(26)(c)1.a., cited in the appeal tribunal decision, "wages" excludes only payments which are received under chapter 102. The employer argues that, if only worker's compensation payments are excluded from wages, the employee's disability benefits, which are not worker's compensation payments, should be included. The employer's argument highlights an error in the appeal tribunal decision: the appeal tribunal misread the statute as excluding everything but worker's compensation payments when, in fact, under Wis. Stat. § 108.02(26)(c)1.a., only worker's compensation payments are excluded from wages. The commission has modified the appeal tribunal decision to remove that portion of the decision which rests on this incorrect reading of the statute. Notwithstanding this, however, the appeal tribunal correctly concluded that the employee's disability payments do not operate to reduce his eligibility for benefits. While the employee's disability payments would be considered wages for qualifying purposes, in order to reduce his benefits based on such payments, the payments must be paid by the employer at the employee's usual rate of pay. Wis. Stat. § 108.05(5m). For the reasons set forth in the appeal tribunal decision, the employee's disability payments do not constitute sick pay as defined in the statute and, therefore, do not serve to reduce the employee's eligibility for benefits. Accordingly, the appeal tribunal decision is affirmed.

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uploaded 2001/09/17