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


CHRISTINE M EWERDT, Claimant

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98001735FL


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 the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked almost two years as a purchasing assistant for a company that fabricated stainless steel for the food processing industry. Her last day of work was June 13, 1997, when she was laid off by that employer. She applied for unemployment benefits on June 19, 1997. Her weekly benefit rate was determined to be $178 with maximum benefits payable totaling $4,628.

The employe provided notice of her unemployment during weeks 25 through 47 of 1997, the calendar weeks ending June 21 through November 22. She was paid benefits in the amount of $178 for each of those weeks. She provided notice of unemployment for week 48 of 1997, but advised the department that she was not able to work or available for work because she was hospitalized several days for the birth of her child. As a result, she was not paid benefits for that week. She continued to claim benefits for weeks 49 through 51 of 1997, and was paid benefits totaling $534. Although she was notified at that point that her claim had exhausted, she did not read the notice and thought she was still entitled to benefits.

On December 30, 1997 (week 1), the employe was told by her doctor that she had not been released to return to any work and would not be released for work until after six weeks had passed. As a result, she contacted the department to report that she should not have collected benefits for weeks 49 through 51 because she had just learned she was not able to work during those weeks.

On January 9, 1998, the department issued a determination that ruled the employe was not eligible for unemployment benefits beginning in week 49 of 1997, and continuing until she was again able to work. She was ordered to repay the $534 in benefits she had received for weeks 49 through 51 of 1997. She delayed repayment on the advice of a department representative since another result of the department's determination of January 9, 1998, had been to restore three weeks of benefits to the employe's account because she was no longer eligible for weeks 49 through 51 of 1997.

Thereafter, it was discovered that the unemployment insurance law had been erroneously applied in the January 9, 1998, determination. As a result, on March 27, 1998, the January 9, 1998, determination was amended to find that the employe could keep the benefits paid to her for weeks 49 through 51 of 1997, because, although she had not been able to work during those weeks, the law prevented the department from retroactively demanding a return of the benefits paid unless the claimant had committed fraud to get the payments.

After being released for work by her doctor, the employe resumed her benefit claim during weeks 7 through 9 of 1998. A benefit check in the amount of $534 was mailed to her for those weeks on March 27, 1998. Since the amended determination ruled she could keep the $534 paid to her for weeks 49 through 51 of 1997, the $534 paid to her for weeks 7 through 9 of 1998 was actually in excess of her benefit entitlement and was for weeks after her claim had exhausted.

Generally, a claimant who receives unemployment insurance benefits in error or because of some fault by the claimant, is required to repay those benefits to the department. However, current law provides that recovery of the overpaid benefits shall be waived if the overpayment occurred as a result of department error.

The issue to be decided is whether waiver of benefit recovery is required for weeks 7 through 9 of 1998 because benefits were paid due to department error.

Wis. Stat. § 108.22(8)(c), provides that the department shall waive recovery of benefits that were erroneously paid if the overpayment was a result of departmental error, and the overpayment did not result from the fault of the claimant.

Wis. Stat. § 108.02 (10e), provides:

"DEPARTMENTAL ERROR. "Departmental error" means 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."

This is a clear case of department error. The department originally demanded repayment of the benefits paid in weeks 49- 51, an admitted error in the application of the law. It then corrected the error by amending the initial determination and in so doing caused the computer to pay additional benefits beyond the employe's inital entitlement in error. While the computer may not be programmable to every situation as asserted by the department representative at the hearing, it remains a tool of the department and errors made by it as a result of programming assumptions must be attributed to the department. The computer did what it was instructed to do and mailed a check. Such mistakes are precisely the sort of thing that Wis. Stat. § 108.22(8)(c) was intended to cover.

Accordingly, recovery of overpaid benefits for those weeks is waived.

The commission therefore finds that the employe was paid benefits for weeks 7 through 9 of 1998, for which the employe was not eligible and to which the employe was not entitled, within the meaning of Wis. Stat. § 108.03(1).

The commission further finds that the department is required to waive recovery of $534 in unemployment compensation benefits erroneously paid to the employe within the meaning of Wis. Stat. § 108.22(8)(c).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is not required to repay the sum of $534 in unemployment compensation to the Unemployment Reserve Fund.

Dated and mailed: September 30, 1998
ewerdch.urr : 178 : 1 BR 335.01  BR 335.03

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did not consult with the ALJ prior to reversing. The commission accepts the ALJ's factual findings but reaches a different conclusion when applying the law to those facts.

 

PAMELA I. ANDERSON, COMMISSIONER (Dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. I believe that we must look at Wis. Stat. § 108.22(8)(c) to determine if the overpayment may be waived. It provides "(c) 1. The department shall waive recovery of benefits that were erroneously paid if: a. The overpayment was the result of a department error, whether or not an employer is also at fault under § 108.04(13)(f); and b. The overpayment did not result from the fault of an employe as provided in 108.04(13)(f), or because of a claimant's false statement or misrepresentation."

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 § 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 employe commits an act of concealment as provided in sub. (11) or fails to provide correct and complete information to the department, the employe is at fault."

Was there employe fault that resulted in an overpayment? I believe there was. The employe was at fault in two ways. First, the employe filed for benefits for three weeks immediately after her baby was born when she was not able and available for work. She was paid for those weeks and exhausted her benefit claim. She later notified the department that she was not able to work those weeks which created an overpayment. Second, she continued to file for benefits even after she had exhausted her claim.

While it is possible to argue department error, that alone does not result in the waiver of overpayment. To receive a waiver of overpayment there must also be no employe fault and I believe there is employe fault. Therefore, I would not waive the overpayment and allow the employe to receive a windfall of $534 in benefits which were over her maximum benefit entitlement.

Pamela I. Anderson, Commissioner

 


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