STACY L MCINTOSH, Employee
BONDED MAINTENANCE CO, Employer
On January 7, 2006, an initial determination was issued finding that, as of the calendar week ending November 5, 2005 (week 45), the employee voluntarily terminated his employment with the employer, the Bonded Maintenance Co., and his quitting was not within any exception to allow for the immediate payment of benefits.
The employee timely appealed the determination and a hearing was scheduled. 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 entered as 312 W. Wisconsin. Thereafter, correspondence mailed by the hearing office to that alternate address was returned marked, "no such number."
The appeal hearing was held on February 16, 2006 at which time only the employee appeared to participate in the hearing. (1) On February 17, 2006, ALJ Junceau issued an appeal tribunal decision reversing 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 a hearing office worker attempted to determine the employer's correct local address, noting her inability to contact the local employer by telephone. The record noted a busy signal and that there "must be something wrong w/line."
On March 10, 2006, the employer faxed a letter to the hearing office explaining its failure to appear, specifically citing technical telephone difficulties. The employer requested a new hearing on the merits. Upon receipt of this explanation, the hearing office set up a hearing on the issue of whether the employer's failure to appear was with good cause. The appeal tribunal decision issued by ALJ Junceau remained in effect and departmental records reflect that unemployment insurance benefits continued to be paid to the employee. (2)
On April 18, 2006, the failure to appear hearing was conducted by ALJ Molitor. (3) After the issuance of the Junceau decision but before the Molitor hearing, unemployment insurance benefits totaling $3,938 were paid for the calendar weeks ending December 24, 2005 through April 15, 2006 (weeks 52-15).
On April 20, 2006 (week 16), ALJ Molitor issued a decision, finding good cause for the employer's failure to appear. The Molitor decision directed that the February 17, 2006, appeal tribunal decision be set aside. However, the set aside was not implemented and benefits continued to be paid, with week 16 the first week after the issuance of the good cause for the failure to appear 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), ALJ Lustig issued a dismissal decision. The dismissal decision did not reference the procedural history of the matter; it simply provided that "THE INITIAL DETERMINATION REMAINS IN EFFECT." Benefits continued to be paid. The dismissal decision was not appealed and became final.
On June 1, 2006 (week 22), department records reflect that the claimant stopped receiving unemployment insurance benefits. Since April 18, 2006 an additional $1,452 in benefits were paid to the claimant for the calendar weeks ending April 22, 2006 through May 27, 2006 (weeks 16 - 21). Departmental records also reflect that as of June 1, 2006, the department's payment adjustment section attempted to notify ALJ Lustig of the overpayment situation and the need to modify the dismissal decision. It appears that the email was either improperly forwarded and/or not properly acted upon until September 2006. (4)
On October 17, 2006, the commission took jurisdiction of this matter; it cited ALJ Lustig's lack of jurisdiction to amend his dismissal decision under Wis. Stat. § 108.09(4)(f) and the Commission's authority to act under Wis. Stat. § 108.09(6)(c) on the grounds that the dismissal decision's failure to address the existence of an overpayment was a mistake. Pursuant to the authority provided in Wis. Stat. § 108.09 (6)(d), the commission's order provided:
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.
Four and a half months later, the ordered hearing was scheduled for Thursday, March 1, 2007. Neither the employer nor the employee appeared. Although witness testimony was taken the commission's order was not complied with and, on March 16, 2007, a standard dismissal decision was issued. The dismissal failed to address the existence of an overpayment and, if an overpayment existed, whether the money was to be repaid to the Unemployment Insurance Division. The appeal tribunal decision became final on April 9, 2007.
Once again, the Commission takes jurisdiction to act on this matter under the mistake provision pursuant to Wis. Stat. §§ 108.09(6)(c) and (d). (5)
The first issue before the commission is whether the employee is entitled to another hearing on the merits.
Wis. Stat. § 108.09(4)(d) provides that an appellant's appeal shall be dismissed if an appellant fails to appear at the hearing and no explanation of non-appearance is received within 21 days of the dismissal decision. In this case, the employee failed to appear at the May 18, 2006 hearing and failed to submit any written explanation for his failure. Therefore, the dismissal of his appeal was proper and the initial determination remains in effect.
The next issue before the commission is the effect of the dismissal upon the claimant's unemployment benefit claim.
When the employee's appeal was dismissed and the determination governed the employee's eligibility, the employee was not eligible for the benefits that were paid to him for weeks 52 of 2005 through week 21 of 2006 totaling $5,390.
Wis. Stat. § 108.04 (13)(c) provides, in relevant part:
. . . 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). . .
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.
Next, Wis. Stat. § 108.22 (8)(a) provides
If benefits are erroneously paid to an individual, the individual's liability to reimburse the fund for the overpayment may be set forth in a determination or decision issued under s. 108.09. Any determination which establishes or increases an overpayment shall include a finding concerning whether waiver of benefit recovery is required under par. (c). If any decision of an appeal tribunal, the commission or any court establishes or increases an overpayment and the decision does not include a finding concerning whether waiver of benefit recovery is required under par. (c), the tribunal, commission or court shall remand the issue to the department for a determination.
With respect to waiver, Wis. Stat. § 108.22 (8)(c) 1 provides:
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.
Finally, Wis. Stat. § 108.04(13)(f) provides:
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) (6) or fails to provide correct and complete information to the department, the employee is at fault.
While there is no evidence of employee or employer fault in creation of the overpayment, clearly there was departmental error in failing to implement the April 20, 2006 decision of ALJ Molitor. The commission has also attempted to determine the whether the department's failure to properly record the employer's local address played a role in the employer's failure to appear at the original hearing as well as the basis for ALJ Junceau's decision to schedule a hearing on the failure to appear without setting aside his decision. The department failed to develop the record in these regards and, given the procedural history outlined above, the Commission reaches the conclusion that the entire overpayment was due to departmental error and repayment must be waived.
The commission therefore finds that:
1. the employee's appeal is dismissed pursuant to Wis. Stat. § 108.09(4)(d),
2. the employee was overpaid benefits totaling $5,390 to which he was not entitled within the meaning of Wis. Stat. § 108.04 (13)(c), and
3. repayment of the $5,390 in overpaid monies is waived due to departmental error and without fault on behalf of the employee or the employer, within the meaning of Wis. Stat. § 108.22 (8)(c) 1.
The decision of the administrative law judge is modified to conform to the above findings. Accordingly, the employee's request for a hearing is dismissed, the initial
determination remains in effect and, although the employee received benefits totaling $5,390 to which he was not entitled, recovery of the overpaid benefits is waived.
Dated and mailed April 23, 2007
mcintst . urr : 150 : 1
BR 335.03
/s/ James T. Flynn, Chairman
/s/ Robert Glaser, Commissioner
[Note: This decision is shown as affected by a corrective amendment issued on May 4, 2007]
[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]