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

THOMAS E FREIBURGER, Employee

2-BROS TRUCKING INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06201336EC


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 affirms in part and reverses in part the decision of the ALJ, and adopts the findings and conclusion in that decision as its own, except that it makes the following modifications:

1. That part of the FINDINGS OF FACT and CONCLUSIONS OF LAW section beginning with the first full paragraph on page 3 of the decision and concluding with the first full paragraph on page 4 is deleted, and the following substituted:

"The record does not show that benefits were paid to the employee in error due to fault on the part of the employer."

2. The fourth full paragraph on page 4 of the decision is deleted.

3. The final sentence of the DECISION section is deleted and the following substituted:

"Benefits paid to the employee in error do not remain charged to the employer's account."

DECISION

The decision of the administrative law judge is affirmed in part and reversed in part. Accordingly, the employee is ineligible for benefits beginning in week 52 of 2005, and until four weeks have elapsed since the end of the week of quitting and he has earned wages in covered employment performed after the week of quitting equaling at least four times his weekly benefit rate which would have been paid had the quitting not occurred. The employee is required to repay the sum of $6,455 to the Unemployment Reserve Fund. Benefits paid to the employee in error do not remain charged to the employer's account.

Dated and mailed November 3, 2006
freibth . umd : 115 : 1  VL 1033   BR 319.1 PC 714.07

James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner



MEMORANDUM OPINION


The employee worked 3.5 years for the employer as a dump truck driver. There was less available work in the winter months, and the employee understood that full-time work would generally end in December and resume in April.

Early in 2005, the employee informed the employer that he "would be leaving at the end of the season." The employee's last day of work for the employer was December 12, 2005 (week 51). The employer was aware that the employee moved to Michigan on December 22, 2005 (week 52).

The employer understood that it was a three- or four-hour drive from the employee's residence in Michigan to the employer's work site. In the winter months, the employer usually does not learn of a job until 7:00 a.m. on the day the job is to be completed, and work on the job usually starts around 8:00 a.m.

Although the employee and the employer's owner talked on the phone once each month from December of 2005 through May of 2006, they did not discuss the employee working for the employer in these conversations. In June of 2006, for the first time, the employee asked whether he could come back to work for the employer.

In filing his claims for weeks 50, 51, and 52 of 2005, (1)  the employee indicated that he had not quit a job in those weeks.

According to the employee, he contacted the department on December 21, 2005, "to clarify that I was leaving and where the checks would be sent. I asked what the correct procedures were for moving and filing. They said I could go as long as I did a job search."

Because the employee's claims for weeks 50 and 51 of 2005 were for partial benefits, the department sent the employer UCB-23 (wage verification/eligibility report) forms for each of those weeks.

The employer returned the UCB-23 form for week 51 of 2005 to the department, indicating that the employee had earned $96.88 that week, instead of the $93 he had reported. This form was signed by Yvonne Gamroth on December 26, 2005. This form identified the "week/year" as "51/05." Part 5. of this form stated as follows:

Place an X in the box of any eligibility issues that apply to this claim:

The eligibility boxes included one labeled "Quit." None of the boxes was checked by the employer on this form.

A department benefit specialist testified that the UCB-23 form for week 51 of 2005 would only apply to that week.

Since the employee did not claim partial benefits for week 52 of 2005, the employer was not sent another UCB-23 form for that week.

The separation was a quit, and this quit occurred on December 22, 2005 (week 52). The employee admits in his testimony that he told the employer that he would be leaving at the end of the season to move to Michigan. The employee notified the employer that he would be moving on December 22, 2005, and he did in fact move on that date. The record does not support a conclusion that either the employee or the employer believed that the employment relationship continued beyond December 22, 2005. As he admits in his testimony, the employee kept in touch with the employer "in case [he] wanted to come back to work for" the employer at some future time.

The employee appears to be arguing that information provided by the department led him to believe that he would qualify for benefits even if he left his employment to move to another state and seek work there. However, as characterized by the employee in his testimony, his inquiry would more reasonably be interpreted as relating to the impact his move to another state would have on the procedure for continuing to claim benefits and receive benefit checks, and on his ability to continue to receive benefits for which he had already qualified, rather than to his eligibility for benefits in the first place. The record does not support a conclusion that the employee identified himself in this December 21 conversation with a department representative, referenced his current claim, or specifically inquired as to his current or future eligibility for benefits. The department witness testified in essence that, when an individual contacts the department with specific questions as to a claim, or as to his or her eligibility for benefits, the department will ask for the individual's name and social security number, and will then record the fact and substance of the contact. The department witness further testified that no such department record existed as to any contact by the employee on or around December 21, 2005. Such testimony is hearsay, but may properly be considered here, given that it generally corroborates the employee's testimony in this regard, and was not specifically rebutted by the employee.

Moreover, the employee had notified the employer early in 2005 that he "planned to leave" at the end of the season, and would be moving to Michigan on December 22, 2005. Clearly, nothing the department would have told him on December 21, 2005, would have influenced his earlier decision to leave his employment with the employer in order to move to Michigan.

The next question is whether an overpayment was created, and, if so, whether recovery of the overpayment should be waived.

Wisconsin Statutes § 108.09(1) states as follows:

"Claims for benefits shall be filed pursuant to department rules. Each employer that is notified of a benefit claim shall promptly inform the department in writing as to any eligibility question in objection to such claim together with the reasons for the objection. The department may also obtain information from the employee concerning the employee's eligibility, employment or wages."

Wisconsin Statutes § 108.04(13) states as follows, as relevant here:

(c) If an employer, after notice of a benefit claim, fails to file an objection to the claim under s. 108.09(1), any benefits allowable under any resulting benefit computation shall, unless the department applies a provision of this chapter to disqualify the claimant, be promptly paid. Except as otherwise provided in this paragraph, any eligibility question in objection to the claim raised by the employer after benefit payments to the claimant are commenced does not affect benefits paid prior to the end of the week in which a determination is issued as to the eligibility question unless the benefits are erroneously paid without fault on the part of the employer. If, during the period beginning on January 1, 2006, and ending on June 28, 2008, an employer fails to provide correct and complete information requested by the department during a fact-finding investigation, but later provides the requested information, charges to the employer's account for benefits paid prior to the end of the week in which a redetermination is issued regarding the matter or, if no redetermination is issued, prior to the end of the week in which an appeal tribunal decision is issued regarding the matter, are not affected by the redetermination or decision, except as provided in par.(g).  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 without fault on the part of the employer, regardless of whether the employee is at fault, the department shall charge the benefits as provided in par. (d) , unless par. (e) applies, 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...

(f) If benefits are erroneously paid because the employer fails to file a report required by this chapter, fails to provide correct and complete information on the report, fails to object to the benefit claim under s. 108.09 (1) or aids and abets the claimant in an act of concealment as provided in sub. (11) , the employer is at fault. 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.

(g) During the period beginning on January 1, 2006, and ending on June 28, 2008, if benefits are erroneously paid because an employer fails to provide correct and complete information requested by the department during a fact-finding investigation, the employer is at fault unless an appeal tribunal, the commission, or a court of competent jurisdiction finds that the employer had good cause for the failure to provide the information....

Wisconsin Statutes § 108.22(8)(c) states as follows, as relevant here:

(c)1. The department shall waive recovery of benefits that were erroneously paid if:

a. The overpayment was the result of a departmental error and was not the fault of any employer under s. 108.04(13)(f); and

b. The overpayment did not result from the fault of an employee as provided in s. 108.04(13)(f), or because of a claimant's false statement or misrepresentation.

In order to determine how these provisions should be applied here, it is necessary first to determine whether benefits were erroneously paid because either the employee or the employer, or both, were at fault.

The employee would be at fault, pursuant to Wis. Stat. § 108.04(13)(f), if he failed "to provide correct and complete information to the department" Here, the employee, in filing his claim for week 52, the week of his quit, failed to report that he had quit a job that week. The employee was, as a result, at fault for failing to provide correct and complete information to the department.

The next question is whether the employer was at fault.

As the department witness testified, the UCB-23 form for week 51, upon which the ALJ relied in concluding that the employer had been at fault, related only to the employee's claim for week 51. The employee, however, did not quit in week 51 but instead in the following week, week 52. There was no reason, as a result, for the employer to indicate on the UCB-23 form for week 51 that an eligibility issue existed. The record does not show that the employer received from the department, or had reason to receive, a UCB-23 form or any other form relating to week 52 or subsequent weeks. There was also no evidence in the record from which to conclude that the UCB-23 form for week 51, or any other correspondence from the department, would reasonably have placed the employer on notice that it was required to notify the department in the future if and when the employee quit his employment. It is not apparent from the record how or why the eligibility question relating to the employee's quit in week 52 was eventually raised on or around May 9, 2006.

A further problem with the ALJ's conclusion in this regard is that it is based solely on hearsay evidence. The department representative testified that she had viewed the UCB-23 form for week 51 on the department's computer system. However, this form was not offered as a hearing exhibit.

Since the employee was at fault, and the employer was not at fault, an overpayment was created, waiver of the overpayment is not merited, and erroneously paid benefits should not remain charged to the employer's account.



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


Footnotes:

(1)( Back ) Week 50 ended on December 10, week 51 on December 17, and week 52 on December 24.

 


uploaded 2006/11/06