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

VICTORIA A TERPSTRA, Claimant

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02007748JV


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 it has reviewed the evidence submitted to the ALJ. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The claimant worked for about one year in a limited term position as an employment specialist for a state government unit. Her last day of work was June 15, 2001. Thereafter, she worked for about two months as an administrative assistant for a Rockford real estate agent. On August 19, 2001, she initiated a Wisconsin claim for unemployment benefits. She next worked about one month as a placement specialist for a private staffing service in Rockford, Illinois. Her last day of work was October 17, 2001. She then reopened her claim for unemployment benefits.

The claimant was paid regular benefits through week 11 of 2002 when the maximum benefit amount due her had been paid out and her claim was exhausted. At that point the Wisconsin Unemployment Insurance Division notified her that her claim would be automatically transferred to Temporary Extended Unemployment Compensation (TEUC), the federal unemployment compensation program referred to above, created in 2002 because of the economic recession, to assist workers who had exhausted regular unemployment benefits without obtaining new employment. Thereafter, she was paid for 13 weeks of extended benefits totaling $2,964.00. That claim exhausted with week 24 of 2002, the calendar week ending June 15.

In week 34 of 2002, when the claimant was potentially eligible for a new Wisconsin benefit claim, she initiated a claim for benefits. The department then reviewed her employment history and determined that she had not worked enough weeks in Wisconsin for a new claim. She was advised to submit a claim for benefits to the state of Illinois because it appeared that she could file a combined wage claim with Illinois. Thereafter, she submitted her claim to Illinois. Her Illinois claim was backdated and she was paid benefits beginning with week 12 of 2002.

Section 202(b) of 107 P.L. 147, (Temporary Extended Unemployment Compensation Act of 2002) provides that "the State agency of the State will make payments of temporary extended unemployment compensation to individuals who --

(1) have exhausted all rights to regular compensation under the State law or under Federal law with respect to a benefit year (excluding any benefit year that ended before March 15, 2001);

(2) have no rights to regular compensation or extended compensation with respect to a week under such law or any other State unemployment compensation law or to compensation under any other Federal law;

(3) are not receiving compensation with respect to such week under the unemployment compensation law of Canada; and

(4) filed an initial claim for regular compensation on or after March 15, 2001.

(c) Exhaustion of Benefits.--For purposes of subsection (b)(1), an individual shall be deemed to have exhausted such individual's rights to regular compensation under a State law when--

(1) no payments of regular compensation can be made under such law because such individual has received all regular compensation available to such individual based on employment or wages during such individual's base period; or

(2) such individual's rights to such compensation have been terminated by reason of the expiration of the benefit year with respect to which such rights existed.

At the hearing a department representative stated that Wisconsin had not implemented a procedure to check with all of the other state unemployment insurance agencies before transferring a Wisconsin claimant who had exhausted his or her regular Wisconsin unemployment benefit claim to the federal extended benefit program. As a result, Wisconsin was not aware that the claimant had potential eligibility for additional regular benefits if she filed a claim with the state of Illinois. Such procedure is not in place.

The claimant had a right to additional regular Illinois unemployment benefits as of week 12 of 2002. As a result, her circumstances did not meet the term "exhaustee" in Wisconsin at that time. Accordingly, the claimant was not eligible for TEUC benefits because she was not an "exhaustee" as of week 12 of 2002.

The next issue to be decided is whether the claimant received any benefits in error, the amount of those overpaid benefits, and whether those benefits must be repaid to the department.

Generally, a claimant who receives unemployment insurance benefits in error is required to repay those benefits to the department. However, Wis. Stat. § 108.22(8) provides that recovery of the overpaid benefits shall be waived if the overpayment occurred as the result of departmental error and if the overpayment was not caused by the claimant's fault or by a false statement or misrepresentation by the claimant. Under Wis. Stat. § 108.02(10e) "departmental error" is defined as:

(a) A mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake or evidentiary fact, whether by commission or omission; or

(b) Misinformation provided to a claimant by the department, on which the claimant relied.

There was no claimant fault or false statement or misrepresentation by the claimant that resulted in the erroneous payment of TEUC benefits. The claimant was paid benefits because the department did not have in place a procedure to determine whether she had eligibility for unemployment insurance in other states. The commission finds that the department's failure to investigate whether the claimant met the eligibility requirements for receipt of TEUC constituted error on the part of the department as defined in Wis. Stat. § 108.02(10e).

The commission therefore finds that as of week 12 of 2002, the claimant was not eligible to begin a claim for federal Temporary Extended Unemployment Compensation (TEUC) because she was not an "exhaustee", within the meaning of section 202 of the Temporary Extended Unemployment Compensation Act of 2002 (P.L. 107-147) and Wis. Stat. § 108.141(1)(b).

The commission further finds that due to department error and not due to any action by the claimant, the claimant was paid benefits in weeks 12 through 24 of 2002 in the amount of $2,964.00, for which the claimant was not eligible and to which she was not entitled, within the meaning of Wis. Stat. § 108.03(1) but that recovery of the benefits paid shall be waived, within the meaning of Wis. Stat. § 108.22(8)(c).

DECISION

The decision of the administrative law judge is affirmed in part and reversed in part. Accordingly, the claimant is not eligible for federal Temporary Emergency Unemployment Compensation (TEUC) as of week 12 of 2002. The claimant is not required to repay the sum of $2,964.00 to the Unemployment Reserve Fund.

Dated and mailed March 28, 2003
terpsvi . urr : 132 : 8 :  BR 335.03

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ James T. Flynn, Commissioner


NOTE: The commission did not consult with the ALJ regarding his impressions of witness credibility and demeanor. The commission's partial reversal of the ALJ's decision is not based on the credibility of the witnesses.


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


uploaded 2003/04/04