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

J C MUNOZ, Claimant

TRADE ACT DECISION
Hearing No. 04602182MW


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 is required to repay the overpayment to the department.

Dated and mailed August 24. 2004
munozjc . tsd : 185 : 1  TRA

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

In his petition, the claimant indicated he was not asserting that the overpayment caused him financial hardship; rather, he was asserting that the overpayment should be waived because a department employee mistakenly found him eligible for Trade Readjustment Allowances, and thus it was not the claimant's error that caused the overpayment. However, Section 617.55 of Title 20 of the Code of Federal Regulations governs the question of whether or not an overpayment of Trade Readjustment Allowances may be waived. That Section provides in relevant part:

". . . the State agency shall recover any such overpayment in accordance with the provisions of the this part 617; except that the State agency may waive the recovery of any such overpayment if the State agency determines, in accordance with the guidelines prescribed in paragraph (a)(2) of the section, that:

(i) The payment was made without fault on the part of such person or individual; and
(ii) Requiring such repayment would be contrary to equity and good conscience." (emphasis added)

Accordingly, in order to obtain a waiver of overpayment a claimant must satisfy two criteria. First, the claimant must demonstrate that he was without fault in having received the Trade Readjustment Allowances. The claimant satisfied this criterion. But second, it must also be demonstrated that recovering the overpayment from a particular claimant would be contrary to equity and good conscience. Section 617.55(a)(2)(ii)(A) of Title 20 provides that in determining whether recovery of the overpayment would be contrary to equity and good conscience, it must be shown that the overpayment would cause "extraordinary financial hardship" to the claimant. Thus, the administrative law judge properly addressed the question of whether it had been demonstrated that recovery of the overpayment would cause extraordinary financial hardship to the claimant. The evidence demonstrated that it would not, and the claimant does not dispute this fact. Therefore, the second criterion necessary for waiver of recovery was not met, and the overpayment must be collected.

cc: Racine Steel Castings



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


uploaded 2004/08/30