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

JOHN B SIMONSON, Claimant

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03401159AP


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 claimant shall forfeit $17,864.00 in unemployment benefits that become payable by March 14, 2009.

Dated and mailed March 26, 2004
simonj1 . usd : 132 : 1   BR 330

/s/ David B. Falstad, Chairman

James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The claimant has petitioned for commission review of the appeal tribunal decision that found that he worked and earned wages in the weeks at issue and that he was required to forfeit benefits because he concealed such facts from the department. First, the claimant's contention that he does not have to report wages from a non-subject employer is simply incorrect. The claimant claims that Wis. Stat. § 108.02(26)(c)13. states that monies given to him by the employer/church are excludable income for the purposes of unemployment. It does not. Rather, that provision states that wages does not include benefits if the claimant reasonably believes he will be able to exclude the benefits from income as a qualified scholarship or fringe benefit. That section does not refer to, let alone exclude, payments made to the claimant for performing services for a church.

The fact that the employer is not a subject employer does not mean that the claimant was not required to report that he was working and earning wages in weeks for which he claimed UI benefits. The claimant is simply incorrect in his assertion that there can only be concealment if the employer is not exempt. For example, the claimant claims that under Wis. Admin. Code § DWD 100.001(2) "if wages are not subject to by the employer, than the entity is not an employer for u/c purposes." Whatever the claimant is attempting to say, that section sets forth the definition of employer for Wis. Admin Code ch. DWD 101. Wisconsin Administrative Code ch. DWD 101 clarifies how the department will apply the definition of wages to assess employer contributions to the UI reserve fund.

The claimant asserted that the telephone claims system would reject the employer's name. The department witness, who has worked with the weekly claim system since the early 1990's, rebutted such claim. If the claimant had indicated he worked, the "yes" response would remain no matter what response the claimant gave regarding who his employer was. Since, the DUCQ record indicates a "no" response to the question regarding whether the claimant worked, the claimant would not have been asked who he worked for. Second, when the claimant speaks an employer name "there is no computer logic behind it. There is no interpretation of the recording done. It's as if you are leaving an answering machine message on someone's home phone." Syn. at 18. The department witness testified that there is no point in the flow of the questions that the system would come back with a message to the effect that the system could not accept the answer. The department witness testified, "there is no logic behind the recording. The system does not have the capacity to accept or reject a particular recording." Syn. at 22.

The claimant was totally unemployed prior to the first week at issue, week 19 of 2002, and claiming UI benefits. The claimant filed a "quick claim" in weeks 19 through 38 of 2002. In those weeks, he simply entered a 6-digit quick claim number after his SSN and pin. By doing so, he was certifying that his answers in each of those weeks were the same as the prior week. Thus, beginning in week 19, when he began working for the employer and earned wages, the claimant claimed his answers were the same as in week 18, when he was totally unemployed. The claimant never attempted to report his work, wages or employer in those weeks.

Exhibit 5 contains the claimant's claims for weeks 11-13 of 2003. These are not weeks at issue, but weeks immediately following the week at issue in 2003. The claimant claims the system would finally accept the employer as a response. He also testified that he had to "guestimate" his wages. Syn. 9-10. The claimant is a very bad "guestimator." In each of the three weeks the claimant reported wages of ".01." His actual wages were $260.00, $236.00, and $316.00, respectively.

The claimant testified that he made contact with the department regarding how to file a claim but did not get a satisfactory response. The claimant also maintained that he attempted to put in the information but it was rejected. In his statement to the department he indicated that he never attempted to contact the department to ask about reporting the work and wages "because I don't trust government agencies." Exhibit 6. The claimant stated that he did not report the wages because "the federal law says that the church is an exempt employer from being taxed for paying UI benefits therefore I concluded that if they don't pay UI benefits then I shouldn't have to report work and wages from this employer." The claimant agreed that Exhibit 6 contained his original explanation to the department. The claimant made his own determination that he did not have to report his wages.

The claimant was at fault in the overpayment and no waiver of recovery of TEUC or regular UI benefits is possible. The claimant references Wis. Admin. Code § DWD 135.02, as permitting waiver. Wisconsin Administrative Code ch. 135 applies to TRA/TAA benefits, which are not involved in this case.

The claimant has had extensive experience claiming UI.  The claimant has previously been required to forfeit benefits.  His claim that he did not have to report the wages because the employer is exempt detracts from his claim that he attempted but was unable to provide the information to the department.  The claimant's testimony that he could not input the information is incredible.  This is the case for which the maximum forfeiture was intended and in which it should and will be applied.

For the above reasons, and for the reasons set forth in the appeal tribunal decision, the commission affirms that decision.


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