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


RICK R ROZANSKE, Claimant

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 95607032MW


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 shall not forfeit $3,059 in unemployment benefits that become payable by November 17, 2001.

Dated and mailed: March 22, 1996
rozanri.usd : 132 : 6  BR 330

Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ David B. Falstad, Commissioner

MEMORANDUM OPINION

The department has petitioned for commission review of the decision of the administrative law judge which found that the claimant did not intend to conceal his employment status from the department in connection with his claims for benefits in weeks 1 through 23 of 1995. The administrative law judge credited the claimant's unrebutted testimony that the information he received from a department representative led him to believe that his receipt of wages in connection with a part-time position would not impact on his weekly benefit rate. The claimant believed that the department had been apprised of his employment status and his failure to repeat the information on his claim cards was not an indication of any intention to conceal material facts from the department in relation to his claim. In the petition for review, the department asked the commission to remand this matter. The commission declines to do so. In Sylvia M. Lubow v. LIRC, Washington County Circuit Court, Case No. 91-CV-427, January 30, 1992, the court stated that "When an agency attempts to impose a forfeiture upon an individual certainly the burden of proof is upon the agency to prove that the individual violated the statute in question." The department did not meet that burden in this case. The department had the opportunity to have a department witness, or even the individual with whom the claimant spoke when initiating his benefit claim, appear at the hearing to present testimony either regarding what individuals would generally be told regarding reporting work and wages or what this claimant in particular was told. Further, the department could have insured through that department witness that any relevant documentation was presented at the original hearing.

For the above reasons, and the reasons set forth in the appeal tribunal decision, the commission affirms that decision.

cc: DIRECTOR GREGORY FRIGO
BUREAU OF LEGAL AFFAIRS


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