STACY L MC INTOSH, Employee

BONDED MAINTENANCE CO, Employer

Pursuant to its authority under Wis. Stat. § 108.09(6)(c), the Labor and Industry Review Commission, on its own motion, now makes the following:

The appeal tribunal decision issued on May 19, 2006, dismissing the employee's request for hearing, is set aside. This matter is remanded to an administrative law judge (ALJ) to reissue the dismissal decision modifying it to include the issue of an overpayment of benefits. Prior to issuing such modified decision, additional testimony should be taken to determine whether any portion of the overpayment was due to departmental error and whether repayment of any portion of the overpayment should be waived. The administrative law judge shall determine whether and which departmental witnesses are necessary.

Dated and mailed October 17, 2006
mcintst . upr : 150 : 2  PC 715

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

Background

The initial determination denied benefits to the employee and he appealed.⁽¹⁾  A hearing was held on February 16, 2006 at which time only the employee appeared to participate in the hearing. ⁽²⁾

On February 17, 2006, ALJ Junceau reversed the determination, finding that the employee did not quit but was discharged and unemployment insurance benefits were allowed.

On February 28, 2006, departmental records reflect that in an attempt to determine the employer's correct alternate address, a worker at the hearing office unsuccessfully attempted to telephone the local employer. The record noted a busy signal and that there "must be something wrong w/line."

On March 10, 2006, the final day for the employer to submit a letter explaining its failure to appear, the employer faxed a letter explaining its failure to appear and requesting a new hearing on the merits. The February 17, 2006, appeal tribunal decision was not set aside pending resolution of the employer's failure to appear and departmental records reflect that unemployment insurance benefits continued to be paid to the employee. ⁽³⁾

The employer's failure to appear hearing was conducted on April 18, 2006, by Administrative Law Judge Molitor. ⁽⁴⁾  On April 20, 2006 (week 16), ALJ Molitor issued a decision, finding good cause for the employer's failure to appear. The decision directed that the February 17, 2006, appeal tribunal decision be set aside. There is no evidence that a stop payment of benefits was placed and benefits continued to be paid, with week 16 the first week after the issuance of the good cause decision.

On May 18, 2006 (week 20), a new hearing on the merits was scheduled with ALJ Lustig. The employee/appellant did not appear. On May 19, 2006 (week 20), the dismissal decision was issued, providing, "THE INITIAL DETERMINATION REMAINS IN EFFECT." There is no evidence that a stop payment of benefits was placed and benefits continued to be paid, with weeks 20 and 21, the calendar weeks ending May 20 and 27, 2006. The dismissal decision was not appealed and became final.

Departmental records reflect that as of June 1, 2006 (week 22), benefit payment was stopped, with benefits paid to the employee for the calendar weeks ending December 24, 2005 (week 52) through May 27, 2006 (week 21), totaling $5,390.00. These benefits were erroneously paid without fault on behalf the employer; the employer had good cause for failing to appear at the hearing and submitted its good cause letter within the statutory time period.

It appears that after ALJ Lustig issued the dismissal decision, the department's payment adjustment section attempted to notify him of the overpayment. Departmental records reflect a June 1, 2006 email, indicating that, as of that day a stop payment had been entered and the decision needed to be modified. However, it appears that the email was either improperly forwarded and/or not properly acted upon until September, 2006. ⁽⁵⁾

An ALJ's authority to amend appeal tribunal decisions after issuance is set out in Wis. Stat. § 108.09(4)(f), which provides:

(f) Postdecision changes. 1. Except as provided in par. (e) 3.,  ⁽⁶⁾   within 21 days after its decision was mailed to the parties the appeal tribunal may on its own motion amend or set aside its decision and may thereafter make new findings and issue a decision on the basis of evidence previously submitted in such case, or the same or another appeal tribunal may make new findings and issue a decision after taking additional testimony.

2. Unless a party has filed a timely petition for review of the appeal tribunal decision by the commission, the appeal tribunal may set aside or amend an appeal tribunal decision, or portion thereof, at any time if the appeal tribunal finds that:

a. A technical or clerical mistake has occurred; or

b. The benefits paid or payable to a employee have been affected by wages earned by the claimant which have not been paid, and the appeal tribunal is provided with notice from the appropriate state or federal court or agency that a wage claim for those wages will not be paid in whole or in part.

3. Unless a party has filed a timely petition for review of the appeal tribunal decision by the commission, the appeal tribunal may, within two years after the date of the decision, reopen its decision if it has reason to believe that a party offered false evidence or a witness gave false testimony on an issue material to its decision. Thereafter, and after receiving additional evidence or taking additional testimony, the same or another appeal tribunal may set aside its original decision, make new findings and issue a decision.

In this case, 21 days had elapsed from the issuance of the dismissal decision. As such, ALJ Lustig could not rely on subdivision (f)1. for authority to act. There is also nothing in the record indicating the necessary facts for the application of subdivision (f)2.b. (relating to benefits being affected by wages earned but not paid and the filing of a wage claim) or subsection (f)3. (relating to false evidence or testimony by a party or witness).

With respect to the "technical or clerical mistake" provision, subdivision (f)2.a., the commission explained the (f)2.a. provision in Kowalczyk, TRA Hearing No. 04200010MD (LIRC February 28, 2005), as follows:

The "technical or clerical mistake" standard in § 108.09(4)(f)2.a. is clearly different from, and clearly narrower than, the "subsequent information [or] mistake, including an error of law" standard in § 108.09(2)(c) which applies to the department's authority to set aside initial determinations after the appeal period has run. The "technical or clerical mistake" standard in § 108.09(4)(f)2.a. is also narrower than the "mistake or newly discovered evidence" standard in § 108.09(6)(c) which applies to the commission's authority to set aside final decisions. . .

In Kowalczyk, the commission provided examples of a "technical or clerical mistake" versus a "mistake of law'" not contemplated in Wis. Stat. § 108.09(4)(f)2.a. Specifically, in Rouse v. Holiday Inn of Rhinelander (LIRC, June 7, 1999) it was "technical or clerical mistake" when correspondence was erroneously sent to the wrong employing unit and a decision ended up listing the wrong employer; while it was a mistake of law in Kowalczyk when the ALJ decided the question of the waiver of a TRA overpayment under Wis. Stat. § 108.22(8), rather than the provisions of the Trade Act. See Kowalczyk, TRA Hearing No. 04200010MD (LIRC February 28, 2005).

In this case, the dismissal did not make findings related to the overpayment as it should have; the error is similar to that in Kowalczyk, a mistake of law not a "technical or clerical mistake." As such, in September, ALJ Lustig did not have the authority to amend and modify the decision to include findings on the overpayment issue. Further, and as mentioned originally, given Wis. Stat. § 108.09(6)(c), the above discussion and the determination that the failure was a mistake of law, the commission's order is permissible under Wis. Stat. §§ 108.09(6)(c) and (d).

The order for additional testimony and modification related to the overpayment derives from Wis. Stat. §  108.22(8)(a) and (c) and the procedural circumstances which raise the issue of possible departmental error.

cc: Bonded Maintenance Company

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(1)( Back ) Prior to the mailing of the hearing notices, the employer returned the local address card, reflecting its street address as 310 W. Wisconsin. Department records reflect that the address was incorrectly entered as 312 W. Wisconsin. Thereafter, correspondence mailed by the hearing office to that alternate address was returned as undeliverable. The error was not corrected even though the local address card remains in the file.

(2)( Back ) Although the employer's agent initially appeared, it left the hearing when the ALJ was unable to complete the telephone call to the employer's witnesses. The ALJ stated for the benefit of the digital record that the two telephone attempts to contact the employer's witnesses resulted in ringing followed by a busy signal.

(3)( Back ) Wis. Stat. § 108.09(4)(e)3 provides, that an ALJ may set aside the decision unfavorable to the respondent when a respondent timely submits a good cause letter for its failure to appear. If the decision is not set aside, the ALJ may amend or set aside the decision within 21 days after the decision for the respondent's failure to appear is mailed.

(4)( Back ) The April 5, 2006 hearing notice mailed to the employee indicated that he needed to contact the hearing office immediately if he wished to participate in the noon April 18, 2006, failure to appear hearing. Departmental records reflect that at 12:18 and at 1:35 the employee contacted the hearing office indicating that he was awaiting a call for the hearing. He was incorrectly advised that he would be contacted. In fact, the ALJ conducted the hearing without the employee's participation. The employee did not petition the ALJ's failure to appear decision.

(5)( Back ) While there clearly were some problems in getting the notice to the ALJ about the need for an amend, this delay did not result in any overpayment of benefits and, as such, is immaterial.

(6)( Back ) This section deals with good cause allegations by a respondent who did not appear for the hearing; it is not applicable to the dismissal decision.

uploaded 2006/10/23