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

WILLIAM W DICK, Claimant

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03000562MD


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 initiated a claim for unemployment insurance benefits in Wisconsin on January 4, 2002. He exhausted that claim on July 20, 2002 and became eligible for Temporary Extended Unemployment Compensation (a federal program, hereinafter known as "TEUC"). The department sent the claimant a letter dated July 15, 2002, advising him that his regular benefits had exhausted and that his entitlement for any state or federal extension would be determined. A letter dated July 16, 2002, also from the department, informed the claimant that the total TEUC available to him was $2,543. The letter went on to state that TEUC is payable to individuals who have exhausted their regular benefits and who are ineligible for benefits under the unemployment insurance programs of any other state.

As a result of receiving the above letters, the claimant continued to file for weekly benefits in Wisconsin and was paid $2,040 of TEUC benefits, his last check being paid in October of 2002. On November 23, 2002, the claimant filed a combined wage claim in Illinois. The state of Illinois automatically sent Wisconsin notification of this claim. Per the department's automated system, an issue arose concerning whether the claimant was eligible for TEUC given that he was eligible for benefits in Illinois. As such, the department investigated and found that the claimant was eligible for regular unemployment insurance benefits in Illinois as of July 21, 2002. After the investigation, the department issued the determination at issue.

TEUC is payable to individuals who (1) filed an initial (new or additional) claim that was effective during or after the week of March 5, 2001; and (2) have exhausted regular benefits or have no benefit rights due to expiration of a benefit year ending during or after the week of March 15, 2001; and (3) have no rights to regular or extended benefits under any state or federal law; and (4) are not receiving benefits under Canadian law. See 67 Fed. Reg. No. 173 (Sept. 6, 2002) (Unemployment Insurance Program Letters). An "exhaustee" is an individual who has received all regular benefits available to him or her from all sources.

Per the above federal authority, the claimant was not entitled to TEUC as of July 21, 2002 because he was eligible for regular benefits in Illinois. Therefore, he was not an "exhaustee" when he began receiving TEUC. The claimant was therefore not entitled to the TEUC benefits he received.

The next issue to be decided is whether the erroneously paid benefits must be repaid to the department.

Under section 206(b) of the Temporary Extended Unemployment Insurance Act of 2002, each state shall require repayment from individuals who have erroneously received TEUC benefits. Such an overpayment can only be waived if the state has an "overpayment waiver provision" for regular benefits and the state chooses to apply this waiver provision to TEUC claimants. Wisconsin Unemployment Insurance does allow waiver of overpayments. In addition, Wisconsin has chosen to apply its waiver provision to TEUC overpayments.

Wisconsin Statute § 108.22(8) provides that recovery of 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.

The claimant contended that while he may have been erroneously paid TEUC benefits, it was through no fault of his own and was due to the department's fault and as such, he should not be required to repay the TEUC monies. The commission agrees.

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 he 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 30 of 2002, the claimant was not eligible to begin a claim for federal Temporary Extended Unemployment Compensation (TEUC) because he 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 the amount of $2,040.00, for which the claimant was not eligible and to which he 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 appeal tribunal decision is affirmed in part and reversed in part. Accordingly, the claimant is ineligible for temporary extended unemployment compensation as of July 21, 2002. The claimant is not required to repay the sum of $2,040.00 to the department.

Dated and mailed July 3, 2003
dickwil . urr : 132 : 1 : BR 335.03

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

The commission did not consult with the ALJ regarding witness credibility and demeanor. The commission's reversal of the ALJ's finding on whether benefit recovery could be waived is not based on credibility but upon applying the undisputed facts to the law.


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


uploaded 2003/07/14