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

KATE S GARVEY, Employee

GREEN BAY PUBLIC SCHOOL DISTRICT, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05401990AP


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, except that it makes the following modifications:

After the last sentence of the DECISION paragraph add the following:

"The appropriate employer accounts will be credited immediately with the overpaid amounts."

DECISION

The decision of the administrative law judge, as modified, is affirmed. Accordingly, during weeks 26 through 35, the employee is ineligible for benefits based upon any wages paid for work performed for the employer. The employee is not required to repay the benefit overpayment of $2,198.00. The appropriate employer accounts will be credited immediately with the overpaid amounts.

Dated and mailed April 26, 2006
garveka . umd : 178 : 2  BR 335

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

In its petition for commission review, the employer argues that the department erred when it waived the employee's overpayment. It further argues that as a reimbursement employer it is entitled to a cash refund of the benefits that were paid to the employee in error.

The commission disagrees that waiver is inappropriate in this case. The department misapplied the law and the employee's actions, contrary to the employer's contention, do not amount to fault. The employee is entitled to apply for benefits and allow the department to investigate whether she eligible. The mere fact of initiating a claim which is later denied does not amount to employee fault.

As to the refund of the erroneously paid benefits, the commission agrees that the employer should receive its money back. Both the statute, at Wis. Stat.
§ 108.04(13)(d)4b, and department practice permit refunds of erroneously paid benefits to reimbursement employer. The employer will receive a credit if it has an outstanding balance or a refund if there is no balance. The decision paragraph has been modified to reflect this fact.

cc: Attorney Tony J. Renning


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uploaded 2006/05/01