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

MICHAEL B. SPRAGUE, Employee

NOSTAM INC., Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03003259JV


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A letter subsequently filed by the employee asking that the matter be re-opened has been treated as an attempt to petition for review.

Late petition issue --

This case presents an issue as to whether an untimely petition for commission review was late for a reason beyond the petitioner's control. To properly frame the late petition issue it is necessary to review the history of the case.

An overpayment arose in this case because, after the employee was initially paid benefits for some time, it was determined that he had quit employment with the employer in 2002 in circumstances which were disqualifying. The benefits which were later determined to have been overpaid were apparently paid initially because of an error as to whether the employee had worked for the employer in 2002. The department's Initial Determination attributed the erroneous initial payment of these benefits to the employee and concluded that the overpayment could not be waived. The employee filed a timely request for hearing. At the hearing, he asserted (as he had during the investigation) that when he filed his initial claim, he had disclosed his 2002 employment with the employer, to a representative of the department with whom he spoke.

The administrative law judge evidently concluded during the hearing that the employee had not reported his 2002 employment with the employer when he made his initial claim. However, in response to the employee's testimony on this subject at the hearing, the administrative law judge made a statement to him concerning the possibility of having the matter reopened. It appears that the administrative law judge told the employee that if he could come up with any information that contradicted the record the administrative law judge had before him at that time, and which the employee believed indicated department error, he should submit that information. According to the employee, the administrative law judge "told [him] that if [he] could come up with the name of the claims specialist that originally opened my case and present him with that name he would investigate himself".

The ALJ thereafter issued his written decision, in which he found and concluded that there had been a disqualifying quit and that the employee would have to repay the benefits he had received. With respect to the overpayment waiver issue, and the invitation he had extended to the employee at the hearing to seek to have the matter reopened, the ALJ wrote:

The employee asserted that he should not be liable for the overpayment because he disclosed the employer in (sic) his quitting when he filed for benefits in November of 2002. However, the employee's record does not show that he reported this employment. The employee was given the option of pursuing this issue by contacting the department, and this matter may be reopened if evidence of department error exists.

(emphasis added).

This decision was issued on June 6, 2003. Pursuant to the provisions of Wis. Stat. § 108.09 (6)(a) and Wisconsin Admin. Code § § LIRC 1.02 and LIRC 2.01 (1), the deadline for a timely petition for commission review was thus June 27, 2003. The employee filed no petition for review, or correspondence of any sort, within that time. Then, on September 23, 2003, the Madison Hearing Office received a letter from the employee which referred to the "option" the ALJ had given the employee of having the case re-opened, and which requested that the matter be re-opened so that he could provide additional evidence about his initial contacts with a claim representative in which he asserted he had disclosed his employment with and quitting from Nostam. This letter was eventually treated as an attempt to petition for review.

In a number of decisions, the commission has recognized that where a party is given incorrect or ambiguous information by the department that led them to misunderstand the necessity or advisability of appealing, it can be appropriate to find that the party's failure to file a timely appeal is for a reason beyond their control. See, e.g., Brice v. Z Harvest Café‚ LLC (LIRC, Aug. 25, 1999), ("[W]hen a party is given incomplete or erroneous information [by the department], and relies upon that information, the employe's failure to file a timely appeal is for a reason beyond the employe's control"). See also, Taylor v. ADECCO North America LLC (LIRC, April 17, 2003); Sorteberg v. Kohnen Underground Utilities Inc. (LIRC, June 5, 2003).  In this case, the statements made by the administrative law judge at the hearing and again in the administrative law judge's decision suggested that the employee had the "option" of contacting the administrative law judge about having the matter reopened and that if he did so the matter would be reopened. Such statements could induce a party to believe that it was not necessary for them to file an appeal, since they would have the alternative of going back to the ALJ and having the matter reopened.

A significant element of the circumstances here is that the administrative law judge did not explain the limitations on his power to re-open the matter. While administrative law judges do indeed have certain discretionary authority to re-open matters, see Wis. Stat. § 108.09(4)(f)1., that authority extends only for 21 days after the date of their decisions. (1)    After that time - which of course matches the appeal deadline - an administrative law judge has no option available to re-open a hearing. To the extent that the administrative law judge failed to include this information, his statements to the employee here about him having an "option" to return to him to have the matter re-opened were "incomplete", see, Brice, supra.

For the foregoing reasons, the commission concludes that the petition for review here was late for a reason beyond the employee's control. It therefore proceeds to a discussion of the merits of the petition.

Discussion - Merits - As noted above, the employee was initially paid benefits which he was subsequently determined to be ineligible for and to have been overpaid, and an issue was thus presented as to whether the overpayment could be waived based on department error. The question which was critical to resolving that issue was whether the employee told the department when he initiated his claim that he had worked for, and quit his employment with, Nostam. If he did, then the department's initial failure to issue a determination on that quit would reasonably be considered an error by the department, and not to have been the fault of the employee.

At the hearing, the employee testified that he did tell a department representative to whom he spoke when initiating his claim, about his then-recent employment with Nostam and his quitting of that employment. However, the ALJ found that he did not, stating in his decision, "the employee's record does not show that he reported this employment."

The ALJ evidently based this finding on a print-out from the department's computer records showing a record of the employee's telephoned initial claim for benefits. However, while this Telephone Initial Claim Record document is physically present in the file which was forwarded to the commission, it is not part of the hearing record. It was never marked and received as an exhibit at the hearing; indeed, it was not even referred to at the hearing. While Wis. Admin. Code § DWD 140.16(2) provides that administrative law judges may take "administrative notice" of department records, it also provides that if they do so "the parties shall be given an opportunity to object and to present evidence to the contrary before the administrative law judge issues a decision". The requirement that parties be given an opportunity to present evidence "to the contrary" must be understood to mean, that the parties must be told by the administrative law judge that he or she proposes to take administrative notice of some particular department record, and provided with that record, and then be given the opportunity to object to this and to present evidence concerning it. There is no indication that this was done here.

The hearing record also contained (as Exhibit 1) a letter sent to the department by the employer in March, 2003, months after the initial claim was filed and benefit payments were started, which explains that the employer never received a UCB-16 form on which it could contest benefits, and which also bears some handwritten notations to the effect that "When clmt filed 11-18-02 he never gave us later work info on Nostam Inc so er is correct, they never got a UCB16". However, there is no evidence in the record as to who added the handwritten notations, or when they were added. Those handwritten statement are thus rank hearsay.

In view of the problems noted above, the competent evidence in the hearing record is simply not sufficient to allow resolution of the critical factual questions relevant to the overpayment waiver issue. In addition, the employee has asserted that he now has evidence that there was department error. In these circumstances, the commission considers it advisable to exercise its authority to order the taking of additional evidence.

For the reasons stated above, and pursuant to authority granted in Wis. Stat. § 108.09(6)(d), the commission therefore makes the following:

ORDER


This matter is remanded to the hearing office for further hearing before an administrative law judge, acting on behalf of the commission, with respect to the issue of whether the employee was erroneously paid unemployment benefits that must be repaid to, or waived by, the department.

Dated and mailed February 20, 2004
spragmi . upr : 110 :  PC 731  BR 335  PC 714.07 

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner


NOTE: At the remand hearing, the Telephone Initial Claim Record screen for the employee should be marked as an exhibit and the employee should be given an opportunity to respond to it.

If the employee believes that he knows the name of the department representative to whom he spoke when he filed his initial claim and wishes to have that person present to testify, he will need to inform the hearing office of that information so that arrangements can be made to have that person present.

If the department can identify the person who made the handwritten notation on the letter which was marked as Exhibit 1 at the original hearing, arrangements should be made to have that person present at the hearing.


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Footnotes:

(1)( Back ) The authority of an ALJ to re-open closed cases at any time under § 108.09(4)(f)2., and to re-open closed matters within 2 years under § 108.09(4)(f)3., would not have been applicable because they are limited to situations not even arguably presented here ("technical or clerical mistake", benefits affected by a unpaid wages and wage claim written off, false testimony on a material issue). The only authority which would have been available to the ALJ to make good on the "option" he gave the employee, was his 21-day authority under § 108.09(4)(f)1.

 


uploaded 2004/02/25