JAMES E. LOWN, Employee

TENNECO AUTOMOTIVE INC., 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.

The decision of the administrative law judge is affirmed. Accordingly, the employee's services were performed for the employer outside of Wisconsin and not in employment covered by the Wisconsin Unemployment Insurance Law, pursuant to Wis. Stat. § 108.02(15). The employee is required to repay the sum of $5,321.00 to the Department.

Dated and mailed October 22, 2001
lownja . usd : 132 : 8  ET 495  BR 335.04 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

The employee has petitioned for commission review of the appeal tribunal decision that found his services for the employer were not employment for Wisconsin unemployment insurance purposes and found that he was erroneously paid benefits that he was required to repay. The fact that the employee had an explanation for failing to report that he performed services outside of Wisconsin does not change the fact that he performed his services outside of the State of Wisconsin. Neither his Wisconsin residency nor the fact that he pays Wisconsin taxes change the fact that he was performing services outside of the State of Wisconsin. The question is not whether the employee had a basis for reporting that he worked in Wisconsin, but whether he in fact performed his services for the employer in Wisconsin. Notwithstanding the amount of benefits he received from Illinois, the employee was paid $5,321.00 in unemployment insurance benefits by the State of Wisconsin that he must repay. Further, any correspondence between the employee and a representative from the State of Illinois does not change the fact that he was erroneously paid benefits that he must repay to the Department of Workforce Development. The only exception to waiving repayment of benefits is if the Department erred in paying benefits. In addition, it must be solely an error on the part of the Department that resulted in the overpaid benefits. The Department appropriately relied on information provided by the employee and the employer. Benefits were erroneously paid because of incorrect information provided by the employee and the employer.

The commission notes that even if it accepted the employee's assertion that somehow the Department erred, which the commission does not accept, the fact remains that the employee provided incorrect information. There was no overpayment that was based solely on Department error. The commission cannot consider what an individual from the UI division in Illinois allegedly told the employee as a basis for finding that the Department of Workforce Development of the State of Wisconsin committed an error in paying benefits. The Department witness testified that if the employee had correctly reported that he had worked outside the State of Wisconsin in the last two years the Department would have investigated his claim.

The employee did not perform services for the employer in Wisconsin. Pursuant to Wis. Stat. § 108.02(15), such services were not "employment" and wages earned in performing such services cannot be used to establish a benefit year. The employee and the employer incorrectly reported that services were performed in Wisconsin. The employee was paid benefits in the amount of $5,321.00 to which he was not entitled. Based on the information submitted by the employee and employer to the Department, the Department did not err in paying benefits to the employee. Finally, whether the overpaid benefits could have been or could be offset using Illinois benefits, there is no evidence that such offset has occurred. The employee's overpayment balance remains at $5,321.00.

cc: 
Bureau of Benefits
Disputed Claims Attn: Carla Berber

[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]

uploaded 2001/10/29