In the matter of the unemployment benefit claim of

DUANE M LICHTWALT, Claimant

The Department of Industry, Labor and Human Relations issued an initial determination on July 20, 1993 finding that claimant had insufficient wages subsequent to the start of his most recent benefit year in which benefits were paid and was therefore ineligible to start a new benefit year. The claimant timely requested a hearing. Hearing was held and the appeal tribunal issued an decision on August 30, 1993 which reversed the initial determination and found the claimant eligible to start a new benefit year. On its own motion, under the authority granted in section 108.09(6)(c) of the statutes, the commission has taken up this matter on grounds of mistake.

Based on the applicable law, records and evidence in this case, the commission makes the following:

The claimant worked for about 16 years as a tool and die maker and maintenance welder for a copper company. His last day of work was May 29, 1992 (week 22). In the fourth quarter of 1992, the claimant received wages in the form of dismissal pay, vacation pay and holiday pay in the amount of $4,145.21. His weekly benefit rate under section 108.05 (1) for his most recent benefit year was $243. The claimant provided no services for wages to any employer after his last day of work on May 29, 1992.

The issue to be resolved is whether the claimant earned wages of at least five times his weekly benefit rate subsequent to May 31, 1992, the start of his most recent benefit year in which benefits were paid.

Section 108.04 (4)(c) of the statutes provides:

(c) An employe is not eligible to start a new benefit year unless, subsequent to the start of the employe's most recent benefit year in which benefits were to be paid to the employe, the employe has earned wages equal to at least 5 times the employe's weekly benefit rate under s. 108.05 (1) for the employe's most recent benefit year in employment or other work covered by the unemployment compensation law of any state or the federal government.

In determining whether the claimant had wages under the above section, the appeal tribunal used the general wages definition in section 108.02 (26), Stats. which includes vacation and dismissal pay. However, the applicable statute requires that the employe had earned wages equal to at least five times his weekly benefit rate in employment or other work since the start of his cost recent benefit year. This section is clarified in the Federal Unemployment Tax Act at 26 USC § 33.04(a)(7) which provides that an individual who has received unemployment compensation during a benefit year is required to have had work since the beginning of such year in order to qualify for compensation in his next benefit year.

The claimant concedes he performed no services for his prior employer or any other employer after his last day of work in May 1992. The wages the claimant has after that date were not wages earned in employment or other work performed after May, 1992 and consequently do not qualify him to start a new benefit year.

The commission therefore finds that the claimant did not earn wages equal to at least five times his weekly benefit rate subsequent to the start of his most recent benefit year in which benefits were paid, within the meaning of section 108.04 (4)(c) of the Statutes.

The commission further finds that the claimant was paid benefits in the total amount of $8,019 for weeks 26 through 52 of 1993, and weeks 1 through 6 of 1994 for which he was not eligible and to which he was not entitled, within the meaning of section 108.03 (1) of the Statutes and that, pursuant to section 108.22 (8) (a) of the Statutes, he is required to repay such sum to the Unemployment Reserve Fund.

The decision of the appeal tribunal is reversed. Accordingly, as of week 26 of 1993, the claimant is not eligible to start a new benefit year. He is required to repay the sum of $8,019 to the Unemployment Reserve Fund.

Dated and mailed February 25, 1994
178 : CD0090   BR 338

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

NOTE: The commission did not consult with the appeal tribunal prior to reversing its decision. As explained above, its decision to reverse was based on the appeal tribunal's mistaken definition of qualifying wages under the applicable statute and is made solely as a matter of law.

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

uploaded 2004/03/02