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

PATRICK JOHNSON, Employee

MARTEN TRANSPORT LTD, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03202095MD

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 employee is ineligible for benefits beginning in week 25 of 2003, and until seven weeks have elapsed since the end of the week of discharge and the employee has earned wages in covered employment performed after the week of discharge equaling at least 14 times the employee's weekly benefit rate which would have been paid had the discharge not occurred. The benefit computation issued on
October 3, 2003, is set aside. The employee is required to repay the sum of $1597 to the Unemployment Reserve Fund.

Dated and mailed February 20, 2004
johnspa . usd : 132 : 3    BR 335.04

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The employee has petitioned for commission review of the adverse appeal tribunal decision that found he was overpaid benefits and was required to repay those benefits because the overpayment was not the result of departmental error. The employee asserts that he should not be required to repay benefits because he followed the procedures for filing a claim and informed the department of the facts leading to his termination. The employee asserts that if the department did not reach the correct conclusion after getting information from the employer then the department was in error in making the original decision. The commission disagrees. The mere fact that the appeal tribunal reversed the initial determination does not establish that the benefits were paid due to "departmental error." Wis. Stat. § 108.22(8)(c)2., provides:

If a determination or decision issued under s. 108.09 is amended, modified or reversed by an appeal tribunal, the commission or any court, that action shall not be treated as establishing a departmental error for purposes of subd. 1.a.

The mere reversal of an initial determination does not constitute "departmental error" for purposes of waiving an overpayment. If it was considered "departmental error" every time an overpayment was generated by an appeal tribunal reversing the initial determination, or the commission reversing an appeal tribunal, a large number of individuals who should not receive unemployment benefits would receive them by default. That is precisely the result Wis. Stat. § 108.22(8)(c)2., was created to prevent.

The term "departmental error" is defined in Wis. Stat. § 108.02(10e):

DEPARTMENTAL ERROR. "Departmental error" means an error made by the department in computing or paying benefits which results from:

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

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

In every case in which the appeal tribunal reverses a department determination it does so because it makes different credibility determinations and/or different legal analyses, neither of which necessarily constitutes "error" as that term is used in Wis. Stat. § 108.02(10e). The department contacted both the employee and employer and obtained their respective versions of events leading to the employee's termination. The department reached a reasonable legal conclusion based on the facts available to the department at the time. The appeal tribunal likewise obtained the parties' versions of events leading to the termination and made a reasonable legal conclusion based on evidence presented at the hearing. Simply because the appeal tribunal reached a different legal conclusion from that reached by the department in its initial determination did not establish that benefits were paid due to department error.

After reviewing the record adduced at the hearing, the commission agrees with the appeal tribunal that the employee's actions that led to his discharge demonstrated an intentional and substantial discharge of the employer's interests. The commission further agrees with the appeal tribunal that the evidence did not establish that benefits were paid due to departmental error.

cc: Marten Transport - Mondovi, Wisconsin

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

uploaded 2004/02/25