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

MICHAEL T. MUNS, Employee

SERVICE PAINTING CORPORATION, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06600370MW


The employee last worked for the employer in week 33 of 2004, the calendar week ending August 14. He filed an initial claim for unemployment benefits on August 16, 2004, indicating "layoff" as the reason he was no longer working. According to department records, the department mailed a form UCB-16 to the employer on August 17, 2004, notifying the employer that the employee had stated that he was laid off, and inviting the employer to enter any disagreement with the reason for the separation from employment on the form or to otherwise object to the claim by returning the form. The employer did not return the form to the department. The employee continued filing claims for benefits through week 46 of 2004 (ending November 13) and received benefits in the total amount of $4277. Thereafter, he obtained other work but again became unemployed in July, 2005. He filed a new initial claim for unemployment benefits beginning with week 28 of 2005 on July 5th, 2005. The department thus sent another form UCB-16 to Service Painting on July 6th, 2005, on which the employer could again challenge the employee's claim for benefits. The employer did return this form to the department, albeit unsigned and after the due date, on July 19, 2005, stating thereon: "Employee walked off jobsite when there was work available." (Exhibit 2)

Service Painting's response on the 2005 UCB-16 form prompted an investigation by the department, which resulted in the issuance of an initial determination dated August 5, 2005. That determination concluded that "the employee quit in anticipation of possibly being laid off at some point but this was not definite nor was he specifically told there was no more work." The initial determination also held that the decision resulted in an overpayment of $4277 which the claimant must repay." The determination finally also stated:

"Benefits were also erroneously paid from another employer's account because of the above employer's [Service Painting's] failure to question eligibility on a required report, form UCB-16. Pursuant to section 108.04(13)(e), benefits paid through 08/06/05 will be charged to the above employer's U.C. reserve account."

The commission, in a previous decision regarding whether the employee's appeal from the initital determination was late for a reason beyond his control, held that it was, and remanded the matter to the department for a hearing on the merits of the underlying "quit" determination, as well as for a decision on whether employee "fault" contributed to the erroneously paid benefits. Hearing Number 05607000MW, LIRC, November 29, 2005. That hearing on the merits was held on January 6, 2006. An administrative law judge (ALJ) issued his decision in the matter on March 13, 2006, affirming the initial determination, both as to the holding that the employee quit rather than that he was laid off, and as to the requirement that he repay the overpayment. Regarding the overpayment, the appeal tribunal decision held:

"When initiating his claim, the employee labeled his separation from employment as a lay off. This constituted a failure to provide correct and complete information to the department and constitutes an element of fault on his part."

The employee filed a timely petition for commission review. On July 7, 2006, the commission summarily affirmed the appeal tribunal decision. The employee submitted a letter received at the commission on July 24, 2006, requesting the commission to reconisder its decision, both as to the "quit" and the requirement that he repay the overpayment.

Upon further consideration, the commission has now determined that the findings of employee fault contributing to the overpayment are not supportable. Therefore, pusuant to Wis. Stat. § 108.09(6)(b) of the statutes, on its own motion, the commission sets aside its decision dated July 7, 2006, and substitutes the following findings of fact, conclusions of law and decision therefor:

FINDINGS AND CONCLUSIONS ON THE ISSUE OF LAYOFF OR QUIT

The commission adopts the first five paragraphs of the Findings of Fact and Conclusions of Law made by the appeal tribunal as its own and incorporates those paragraphs herein by reference.

FINDINGS AND CONCLUSIONS REGARDING THE OVERPAYMENT

The employee was paid benefits in the amount of $4277, for which, by virtue of the foregoing decision that he voluntarily terminated his employment, he was not eligible and to which he was not entitled, within the meaning of section 108.03(1) of the statutes. Although the employee has contended that the overpayment was due to "departmental error," and repayment should be waived, the commission does not agree that department error affected the claim. The statutes define departmental error as: "an error made by the department in computing or paying benefits which results from:

(a) A mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, whether by commission or omission; or
(b) Misinformation provided to a claimant by the department, on which the claimant relied."

Wisconsin statute section 108.02(10e).

In this case, the overpayment was caused instead, as noted in the initial determination, by the employer's failure to return the UCB-16 form when the claim was originally filed in August 2004. At the hearing, the administrative law judge reminded the employer that it did not appeal the part of the initial determination which said that benefits would remain charged to the employer's account. The employer's witness acknowledged that the employer had not appealed that aspect of the case. The ALJ declared "That portion of the determination is final."

The fact that the employer will remain charged with the benefits paid that are at issue does not end the inquiry as to whether the employee must repay the overpayment to the department. Wisconsin Statute § 108.04(13)(c) provides:

"If benefits are erroneously paid because the employer and the employee are at fault, the department shall charge the employer for the benefits and proceed to create an overpayment under s. 108.22(8)(a)....If benefits are erroneously paid because an employer is at fault and the department recovers the benefits erroneously paid under s. 108.22(8), the recovery does not affect benefit charges made under this paragraph."

Under the foregoing statutory provision, employee "fault" must also be determined in order to resolve whether benefits paid as the result of the employer's "late denial" in belatedly returning a required report must be repaid by the employee.

The statutes define employee fault at s. 108.04(13)(f):

"If benefits are erroneously paid because an employee commits an act of concealment as provided in sub. (11) or fails to provide correct and complete information to the department, the employee is at fault."

Throughout these proceedings, the employee has vigorously and consistently asserted, contrary to the employer's position, that he did not walk off the job, but that he was told there was no longer any work to report to at the job he had been on, and there were no other jobs to send him to. Nothing in the file or department records gives any indication that the employee was questioned further at the time, about the entry in his initial claim in August 2004 of "layoff" as the reason he was no longer working. In the absence of the employer questioning that response by the employee, no basis for further inquiry existed. The issue of "employee fault" in this case does not involve statements made by the employee when the matter was investigated by an adjudicator in early August of 2005, because all of the benefits at issue had already been paid by that time. Instead, only the employee's simple entry of "layoff" in his initial claim filed in August 2004 is subject to analysis as to whether such entry was an act of concealment by the employee or a failure to provide correct and complete information to the department.

While the commission has ultimately sided with the employer's version of the ending of the employment, it finds nothing unusual in the nature of the dispute between the employer and the employee as to whether the ending of the employment was a layoff or a quitting by walking off the job. Nothing about the employee's testimony suggests he ever deliberately falsified the facts in his favor or put forward any case other than the one as he understood it to be. And nothing persuades the commission that his having entered the term "layoff" as the reason for separation on his initial claim involved any failure to provide correct and complete information to the department. The employee should not be penalized, in the commission's view, for asserting in apparent good faith the facts as he saw them (and continues to see them), even though the disputed facts have been resolved against him. To hold otherwise would relegate any claimant to responsibility for repaying benefits paid when an employer belatedly disputes a claim and the dispute is ultimately resolved against the employee. Claimants need not resolve nor even be called upon to recognize possible ambiguities as to their eligibility for benefits with statements against their self interest in asserting their claims, in order to avoid being later held to have failed to provide correct and complete information.

Accordingly, the commission therefore finds that, in week 33 of 2004, the employee terminated work with the employer and not within any of the exceptions to section 108.04(7)(a) of the statutes, but that, as of week 28 of 2005, at least four weeks had elapsed since the end of the week of quitting and the emloyee had earned wages for work actually performed in covered employment after the week of quitting equaling four times the weekly benefit rate which would have been paid had the quitting not occurred, within the meaning of that section.

The commission further finds that the employee was paid benefits in the amount of $4277, for which he was not eligible and to which he was not entitled, within the meaning of section 108.03(1) of the statutes. The commission further finds, however, that benefits were not erroneously paid because the employee was at fault, within the meaning of sections 108.04(13)(c) and (f) of the statutes, in that he did not commit an act of concealment nor fail to provide correct and complete information to the department when he initiated his claim for benefits in August of 2004. The determination that benefits remain charged to the employer's account because of the failure to file the form UCB-16 was not appealed and became final. Accordingly, there is no overpayment, within the meaning of sections 108.04(13)(c) and 108.22(8)(a) of the statutes.

DECISION

The appeal tribunal decision is affirmed insofar as it held that the employee voluntarily terminated his employment. The appeal tribunal decision is reversed insofar as it finds employee fault and employee failure to provide correct and complete information. Accordingly, the employee is ineligible for benefits for weeks 33 of 2004 through 27 of 2005. He is eligible in week 28 of 2005 and thereafter. However, he is not required to repay the benefits he received in the amount of $4277 as a result of the employer's failure to file the required report in response to his initial claim.

Dated and mailed August 3, 2006
munsmi . upr : 180 : 8  BR 319.1

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner



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


uploaded 2006/08/15