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

TIMOTHY E DONEY, Claimant

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06003660LX


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 position of the party, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Until 2003, the claimant had worked for 20 years as an order selector for the Fleming Company. His employment ended when the company closed. Thereafter, the claimant worked part time as a packer for a brewery business and, when he was laid off, he worked several seasonal jobs.

The claimant opened an unemployment claim as of week 11 of 2006, the calendar week ending March 18. Shortly after the claimant opened his unemployment claim, the brewery recalled him to a full time job paying a substantially higher wage than his previous work. He returned to work for brewery in week 12 of 2006 and discontinued his unemployment benefit claim. He was paid $104 in unemployment benefits for week 11 of 2006 on March 21, 2006.  (1)

At the time the claimant filed his claim for benefits in week 11 of 2006 he was not apprised of the alternative filing procedures or the effect of alternative filing on his benefit claim. Had the claimant filed in the next calendar quarter, it would not have changed his weekly benefit rate but would have increased his maximum benefit amount.

In anticipation of a layoff later in 2006, the claimant requested that the department set aside his benefit year resulting in an increased his maximum benefit amount.

Departmental records reflect that after the appeal tribunal decision denying the set aside request was issued, the employee filed for and received unemployment insurance benefits. He received and cashed four benefit checks, for the calendar weeks ending March 18, November 11, December 2 and 9, 2006 (weeks 11, 45, 48 and 49); each check was for $104.00.

Thus, the issue to be decided is whether to grant the claimant's request to set aside his benefit year.

When benefits have been paid as of the time the claimant requests to set aside his or her benefit year, whether a benefit year may be set aside is governed by Wis. Admin. Code § DWD 129.04(2). That code provision provides as follows:

(2) OTHER CONDITIONS. (a) If the claimant does not meet all of the requirements under sub. (1), the department may set aside the benefit year under other conditions. Other conditions include, but are not limited to, the following:

1. The department terminates coverage of an employer previously subject to ch. 108, Stats., for whom the claimant performed services in the base period and the claimant could not have foreseen this termination of coverage;

2. The department makes an error relating to the claimant's establishing of a benefit year;

3. The wage data used by the department to establish the benefit year is erroneous; or

4. The claimant elects alternative filing because the claimant's benefit year was established in the last month of a calendar quarter and benefits were paid to the claimant prior to the department advising the claimant of the choice of alternative filing.

(b) The department may not set aside a benefit year under this subsection unless the department:

1. Has recovered, or has waived the recovery of, all benefits paid to the claimant for that benefit year; or

2. Offsets this amount against benefits the claimant would otherwise be eligible to receive at the time the request to set aside a benefit year is made.

The claimant's circumstances do not meet the specifically listed circumstances allowing the set aside of the benefit year. However, that list is not exclusive. In particular, Wis. Admin. Code § DWD 129.04(2)(a) indicates that the "other conditions" are not limited to those listed. In this case, the claimant filed in the last two weeks of a calendar quarter. He was not informed of the alternative filing procedures or how it would benefit him. The commission finds that these circumstances are sufficiently similar to those conditions listed as to allow the setting aside of his benefit year.

The commission therefore finds that exceptional circumstances exist justifying the claimant's request to set aside his benefit year, within the meaning of Wis. Admin. Code § DWD 129.04(2)(a). The commission directs further departmental action recover or offset the amount of benefits paid to the claimant under the original benefit year, within the meaning of Wis. Admin. Code § DWD 129.04(2)(b).

DECISION

The appeal tribunal decision is reversed. Accordingly, the claimant's request to set aside his benefit year beginning in week 11 of 2006 will be

granted with the prior benefits recovered or offset.

Dated and mailed January 18, 2007
doneyti2 . urr : 150 : 2   CP 395

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision. The commission's reversal was not based on a differing credibility assessment but rather on a different conclusion of law on essentially the same facts as found by the administrative law judge.



 

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Footnotes:

(1)( Back ) The claimant did not cash his benefit check but presented it to the administrative law judge at his appeal tribunal hearing. It was returned to him by the administrative law judge with the appeal tribunal decision.

 


uploaded 2006/01/22