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. 02400399AP


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, the claimant is required to repay the sum of $3,399.00 to the Unemployment Reserve Fund.

Dated and mailed May 10, 2002
cowdeje . usd : 105 : 1   BR 335.04

s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner


MEMORANDUM OPINION

The issue in this case is whether the initial determination allowing benefit eligibility was departmental error, within the meaning of Wis. Stat. § 108.02(10e). The commission agrees with the administrative law judge that it was not. As the administrative law judge reasoned, federal law requires prompt payment of unemployment insurance benefits. For this reason, benefits are paid after initial determinations finding grounds for eligibility, even if the matter then is appealed (which creates the possibility that the initial determination will be reversed). Adjudicators must base their decisions upon the facts they have available to them. The same reasoning is true of administrative law judges. The hearing before an administrative law judge is de novo, however; that is, the administrative law judge does not necessarily have available to him or herself exactly the same information the adjudicator had when issuing the initial determination. Because of this fact, it can happen that an appeal tribunal decision will reverse an initial determination, when both decisions are correct (in the sense that both came to the conclusion called for by the facts available to the factfinders). That is all that occurred here, so there is no basis upon which to conclude that the initial determination was error such that waiver of recovery of the benefit overpayment is required.

For these reasons, and for those stated in the appeal tribunal decision, the commission has affirmed that decision.

 


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uploaded 2002/05/13