RUDY J MUNDINAC, Claimant

On July 18, 2002, the Department of Workforce Development issued an initial determination which held that the claimant concealed a failure to accept an offer of work in week 26 of 2002. The claimant filed a timely request for hearing on the adverse determination, and hearing was held on October 22, 2002 in West Baraboo, Wisconsin before a department administrative law judge. On October 25, 2002, the administrative law judge issued an appeal tribunal decision affirming the initial determination. The claimant filed a timely petition for review of the adverse decision, and the matter now is ready for disposition.

Based upon the applicable law and the records and other evidence in the case, the commission issues the following:

The issue in this case is whether the claimant concealed an offer of work, within the meaning of Wis. Stat. § 108.04(11), when filing his unemployment insurance claim for week 26 of 2002. The commission concludes as a matter of law that he did not, and so reverses the appeal tribunal decision.

The case involves an offer of work to the claimant by a previous employer, Kelly Services, Inc. The claimant last worked for the employer in late April of 2002. In June, the employer left a message on the answering machine of the claimant's mother, telling the claimant a job was available to the claimant. Shortly thereafter, the claimant responded to the message by telephoning the employer and indicating that he was starting a full-time job on July 1, 2002, and that he therefore no longer was interested in working for the employer. Because of this statement, the employer did not provide the claimant with details of the assignment.

In this kind of case, the claimant's immediate statement that he is no longer interested in working for the employer, is known as "blocking" an offer of work. That is, the employer would have made the complete offer of work to the claimant but for the claimant's blocking the offer by immediately stating he was not interested in such. In treating this scenario as an offer of work under Wis. Stat. § 108.04(8)(a), the law employs what is known as a "legal fiction." That is, the law finds an offer of work that in fact was never made, on the ground that it would have been made but for the claimant's blocking of the offer. In this context, however, concealment by a claimant will rarely be found.

Wisconsin Stat. § 108.04(11) penalizes the concealment of a material fact relating to the claimant's eligibility for unemployment insurance. In this kind of case, though, as a matter of law it will rarely, if ever, be the case that a claimant's failure to report an offer of work (in the blocking context) is concealment under Wis. Stat. § 108.04(11). For more than 10 years, the commission has consistently held the following with regard to concealment of material facts. Concealment for unemployment insurance purposes consists of a suppression of a fact and implies a purpose or design. Kamuchey v. Trzeaniewski, 8 Wis. 2d 94, 99, 98 N.W.2d 403 (1959), citing 23 Am. Jur., Fraud and Deceit, p. 851, sec. 77. There must be the intent to receive benefits to which the individual knows he or she is not entitled. Krueger v. LIRC, Case No. 81-CV-599 A, 1982-85 U.C. Digest at 235 (Rock Cty. Cir. Ct. 12-3-82).  In a case where, as here, a claimant has blocked an offer of work, the claimant would not be guilty of concealment in failing to report the offer because the claimant would have no idea that the circumstances legally constituted an offer of work.  There also is unlikely to be concealment where, as here, the failure to accept the underlying offer of work is not disqualifying. In the present case, the assignment was approximately three hours away from the claimant's residence, and that factor gave the claimant good cause for "refusing" the offer. But where the underlying circumstances are not disqualifying, the intent to receive benefits to which the individual knows he or she is not entitled, generally is lacking.

The commission therefore finds that, in week 26 of 2002, the claimant did not conceal from the department a refusal of a job offer, within the meaning of Wis. Stat. § 108.04(11)(a). The claimant therefore does not forfeit $446 in unemployment insurance benefits that become payable by July 12, 2008, within the meaning of Wis. Stat. § 108.04(11)(b).

The appeal tribunal decision is reversed. Accordingly, the claimant shall not forfeit $446 in unemployment insurance benefits that become payable by July 12, 2008.

Dated and mailed February 12, 2003
mundiru . urr : 105 : 2   BR 330

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision in this case. As a matter of law, when it is subsequently found that a claimant's actions have "blocked" an offer of work from an employer, the claimant cannot be considered to have previously concealed the offer of work.

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

uploaded 2003/02/21