ALLEN R WELSH, Employee

DENTAL ASSOCIATES, Employer

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.

The decision of the administrative law judge is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 34 of 2004, 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 employee is required to repay the sum of $889.00 to the Unemployment Reserve Fund.

Dated and mailed November 17, 2004
welshal . usd : 135 : 1    BR 335.04

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

The only issue the employee raises in his petition concerns his overpayment. The employee contends that he should not have to pay back the unemployment insurance benefits he received in view of the settlement he reached with his former employer, the Department of Corrections. Here, the relevant employment separation involved a different employer. Moreover, the settlement between the employee and the Department of Corrections does not undo the employee's failure to disclose the disciplinary investigation he was a part of to this relevant employer.

The overpayment in this case results from the ALJ's reversal of the department's initial determination. Where benefits are paid because the initial determination is made based upon a differing interpretation of all the available information, the overpayment is not caused by a departmental error when an administrative law judge after conducting a hearing and considering the evidence reaches a different legal conclusion. See, Wilber L. Anderson v. Lindeberg Heat Treating Company, (LIRC September 25, 1995). Therefore waiver of this overpayment is not merited since the initial award of benefits was not based on department error within the meaning of Wis. Stat. § 108.02(10e), but instead based on a differing interpretation of the applicable law. Therefore, the employee's request for waiver of the overpayment is denied.

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uploaded 2004/11/22