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

JAMES A WAMBOLD, Employee

APPLE STEEL RULE DIE CO INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05605371MW


On August 15, 2005, an administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued an "Appeal Tribunal Decision - Withdrawal" document for hearing number 05605371MW.

On October 13, 2005, the Unemployment Benefits Overpayment Collection Section received a letter from the claimant, dated October 6, 2005. The letter was forwarded to the Commission as a petition for review of the August 15, 2005 document.

The commission has considered the petition and the positions of the parties, and it has reviewed the record in these matters. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

On December 23, 2004, the claimant, James Wambold, initiated a claim for unemployment insurance benefits based upon his layoff from Wambold's Best Cleaning Inc.

On January 11, 2005, a determination was issued finding that the corporate reduction applied to the claimant. (1)   It appears that based upon wages reported (both from Wambold's Best Cleaning and Apple Steel Rule Die Co. Inc.), the claimant was set up with a $298.00 weekly benefit rate. The claimant filed claims for unemployment insurance benefits in weeks 1 through 14 of 2005. During these weeks, the claimant was unemployed from his business but worked and earned wages from Apple Steel Rule Die Co. Inc. (Apple). However, he did not report this work or wages and was paid unemployment insurance benefits of $298.00 each of those weeks. (2)

Department records reflect that on or about June 17, 2005, the claimant's failure to properly report the wages from Apple was discovered. An investigation was prompted. During this same June timeframe, the Wambold's Best Cleaning Inc. apparently reported that it had paid him more wages in the base period than originally reported. As a result, on June 22, 2005, the original January 10, 2005 monetary computation was amended (3)   and the claimant was given a recomputed maximum weekly benefit rate of $329.00. (4)

Departmental records reflect that the original work and wages investigation incorrectly used $298.00 as the claimant's weekly benefit rate, with a potential overpayment of $2,514.00. Yet, prior to the actual entry and mailing of the work and wages determination, the error in the weekly benefit rate was corrected, with the work and wages determination was mailed on July 16, 2005, reflecting an overpayment of $2,080.00. (5)   It was this determination that the claimant timely appealed for hearing. Departmental records further reflect that the adjudicator did not find fraud or concealment in the claimant's failure to report the work and wages but instead issued the claimant a July 14, 2005 letter of direction to properly report work and wages.

The hearing on the work and wages issue was scheduled for 12:45 p.m. on August 16, 2005 at the Milwaukee Hearing Office. On August 15, 2005, the Milwaukee Hearing Office received a completed withdrawal postcard from the claimant. The claimant signed the card reflecting that he wanted to "withdraw my request for a hearing" and understood that "no further proceedings will be scheduled in this matter." He also apparently wrote on the card, "My complaint is with UI computation not with Apple Die."

On August 15, 2005, Steven P. Glick issued an "Appeal Tribunal Decision - Withdrawal."

On October 13, 2005, the UI Collection Section received a letter from the claimant stating the following:

I am writing to dispute the determination that I received. I believe I did not receive proper credit for wages from Best Cleaning. I feel the amount that I was overpaid should be less.. I didn't receive any wages from Best Cleaning for the first four months of 2005. How can I possibly pay back 2080.00 when I did not receive any wages from Best Cleaning. The point of unemployment is to cover wages lost. Why should I pay into a system that penalizes for lost wages.

The letter was forwarded to the commission for action and the first issue is how to treat the claimant's letter.

In Glasschroeder v. A 1 A Plus, UI Dec. Hearing Nos. 03401009AP and 03401010AP (LIRC March 4, 2004), the commission held that an "Appeal Tribunal Decision - Withdrawal", as currently formatted (6), is an appealable document. The claimant's letter thus was properly forwarded to the commission as a petition for review of the withdrawal decision.

Wis. Stat. § 108.09(6)(a) provides that the commission shall dismiss any petition not timely filed "unless the petitioner shows probable good cause that the reason for having failed to file the petition timely was beyond the control of the petitioner." A petition for commission review is timely if it is received by the department or commission or postmarked within 21 days after the appeal tribunal decision was mailed to the party's last-known address. See Wis. Stat. § 108.09(6)(a). Given the issuance date of the withdrawal decision, the claimant's letter was clearly late within the meaning of the above and the next issue is whether he has established probable good cause that the petition was late for a reason beyond his control.

In Glasschroeder v. A 1 A Plus, UI Dec. Hearing Nos. 03401009AP and 03401010AP (LIRC March 4, 2004), the commission pointed out a flaw in the format of withdrawal decisions themselves. In particular, the withdrawal decision does not explain appeal rights or a deadline. As a result, the commission treats the claimant's failure to timely appeal as a reason beyond his control.

Glasschroeder set the following approach once the commission has jurisdiction; specifically, asking if:

(1) there in fact had been a withdrawal,
(2) the request to retract met the requirements of the department's rule, and
(3) there was "good cause" to retract the withdrawal.

In this case, while the claimant's withdrawal postcard meets first requirement, his request does not meet the second. In particular, Wis. Admin. Code § DWD 140.05(2) provides that a request to retract a withdrawal and reinstate an appeal:

...shall be in writing and state a reason for the request. The administrative law judge may not grant a request to retract a withdrawal unless the request establishes good cause for the retraction and is received within 21 days after the withdrawal decision was mailed to the appellant.

Since the claimant had no contact with the department in the 21-day period after the withdrawal decision was issued in this case, he fails to establish that his request to retract met the 21-day requirement of Wis. Admin. Code § DWD 140.05(2) and the analysis of the third requirement is unnecessary.

The commission therefore finds that the claimant's petition was filed late but that it was late for a reason beyond the claimant's control, within the meaning of § 108.09(6)(a). The commission further finds that the claimant's request for hearing was withdrawn, within the meaning of Wis. Stat. § 108.09(4)(a), and that the claimant did not file a request to retract his withdrawal that met the requirements of Wis. Admin. Code § DWD 140.05(2).

DECISION

The withdrawal decision of the administrative law judge is affirmed. Accordingly, the request for hearing will not be reinstated and the Initial Determination shall remain in effect.

Dated and mailed November 23, 2005
wamboja . urr : 150 :  PC 718  PC 731  PC 749

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner




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Footnotes:

(1)( Back ) This determination was not appealed and became final on January 25, 2005. The result of this determination was that the amount of base period wages from Wambold's Best Cleaning Inc. used to compute the claimant's unemployment benefit eligibility would be limited to ten times his benefit rate as computed solely for this work or the actual base period wages, whichever was less.

(2)( Back ) Department records regarding the work and wages investigation reflect that the claimant did not dispute the Apple work and wages. Instead, it appears that he may be confused regarding the nature of unemployment insurance benefits. Specifically, it would appear based upon statements in the October 6, 2005 letter, the claimant believes that the unemployment insurance program operates similar to an "income continuation plan." It does not. The maximum benefit rate is paid in a total week of unemployment if the claimant is otherwise eligible. If there are any partial wages, from any employing unit, those wages must be used to reduce a claimant's eligibility. The statute does not call for a one to one reduction but, instead, the first $30 of the wages are disregarded with 67% of the remaining amount used to reduce the weekly benefit payment, except that an employee is not eligible for benefits if the payment is less than $5 that week. See Wis. Stat. §108.05(3).

(3)( Back ) The amended monetary computation was issued on June 22, 2005, was not appealed and became final on July 6, 2005.

(4)( Back ) Department records reflect that under the newly reported base period wages, the claimant had high quarter wages from Wambold's Best Cleaning Inc. in the 2nd quarter of 2004, with an amount of $5,850.00. Using this alone, the claimant had a $324.00 weekly benefit rate. The corporate reduction determination resulted in the lesser of 10 times $324.00 or the total of his base period wages solely from Wambold's Best Cleaning Inc. to be used to compute his monetary entitlement, i.e. $3,240.00 was added to the wages from Apple to compute his benefits available. See Wis. Stat. §108.04(1)(g).

(5)( Back ) Even if the claimant was able to establish that his reported base period wages with Wambold's Best Cleaning Inc. were incorrectly reported too low (for a second time), it would not change the overpayment amount. In particular, his weekly benefit rate was set at the maximum amount and he did not exhaust his claim in those weeks, so the week-by-week overpayment would not change.

(6)( Back ) Since Glasschroeder was issued, the hearing offices have not made any apparent changes to the "Appeal Tribunal Decision Withdrawal" format. In the claimant's case, as in Glasschroeder, the withdrawal decision has "Not Applicable" written in the "Appeal Must Be Received or Postmarked By:" section. Additionally, the reverse of the form has an "APPEAL RIGHTS" section mentioning a 21-day appeal deadline and a "WITHDRAWAL DECISION" section explaining that such decisions are not appealable but that a request to retract a withdrawal and reinstate the prior request for hearing may be made in writing, stating the reason for retraction and received within 21 days from the date of the date of the withdrawal decision.

 


uploaded 2005/12/05