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

STEVEN J STAPLETON, Employee

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04004665MD


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 makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The issue to be decided is whether the claimant concealed from the department any material facts relating to benefit eligibility when filing benefit claims for weeks 2, 6, 9 and 18 of 2004.

The employee admitted that in week 18 of 2004, he earned wages of $1,016.29 which he did not report to the department. A companion decision creates an overpayment of $329 for that week. The decision further found no overpayment in weeks 2, 6, and 9 of 2004.

The employee testified that he failed to report his wages in week 18 because he "spaced it right out" and that such action was not concealment. The employee is an experienced unemployment claimant who has filed claims and reported wages often in the past. Moreover, the employee testified that when he discovered his mistake, he elected not to report the wages because he did not wish to repay the benefits. The employee's long experience with the program along with his admission that he sought to avoid the repayment of benefits leads the commission to discredit his testimony that the concealment was unintentional.

The employee received benefits totaling $329, to which he was not entitled given the facts and conclusions above. Those benefits were paid because the employee concealed his work and wages in week 18 of 2004.

Under Wis. Stat. § 108.04(11)(a), if a claimant, in filing his application for benefits or claim for any week conceals wages, a refusal of a job, or any other material fact relating to his eligibility for benefits, so much of any benefit payment as was paid because of such concealment shall be recovered by the department as an overpayment. The employee's false statement that he performed no work and earned no wages in week 18 of 2004 was a material fact relating to his eligibility that he concealed. Wis. Stat. § 108.04(11)(b)2. provides that the department shall require the claimant to forfeit for each act of concealment not less than one nor more than four times the claimant's weekly benefit rate for the week for which the claim is made for any single act of concealment which results in an overpayment of 50 percent or more of that benefit rate.

Department policy advises that when a prior forfeiture is involved, the penalty should be three times the weekly benefit rate for each act of concealment. The employee was assessed a prior forfeiture in 2000. Therefore, the commission determines that the appropriate forfeiture is $987.

The commission therefore finds that in week 18 of 2004, the claimant concealed from the department a material fact relating to benefit eligibility, within the meaning of Wis. Stat. § 108.04(11)(a), and the claimant shall forfeit $987 in unemployment insurance benefits that become payable by August 28, 2010, within the meaning of Wis. Stat. § 108.04(11)(b)2.

The commission further finds that in weeks 2, 6 and 9 of 2004, the claimant did not conceal from the department a material fact relating to benefit eligibility, within the meaning of Wis. Stat. § 108.04(11)(a), and no forfeiture of unemployment benefits is assessed for those weeks, within the meaning of Wis. Stat. § 108.04(11)(b)2

DECISION

The decision of the administrative law judge is reversed in part and affirmed in part. Accordingly, the amount of benefit forfeiture is amended. The claimant shall forfeit $987.00 in Unemployment Insurance benefits that become payable by August 28, 2010.

Dated and mailed March 25, 2005
staplst2 . urr : 178 : 4  BR 330

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

The commission has partially reversed the appeal tribunal decision as a matter of law. The allegations that the employee worked and earned wages in weeks 2, 6 and 9 of 2004 was not established and therefore, there is no concealment of those wages.


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


uploaded 2005/03/30