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

ANGELA S SUTTER, Employee

SCHOOL DISTRICT OF HORICON, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07001195BD


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

Delete the third and fourth sentences of the sixth paragraph after "FINDINGS OF FACT and CONCLUSIONS OF LAW" and substitute therefor:

"The statutory definition of base period wages includes sick pay that is paid directly by an employer to an employee at the employee's usual rate of pay during her base period as a result of employment for an employer, pursuant to Wis. Stat. § 108.02(4m)(b). Further, temporary total or temporary partial disability payments made for a worker's compensation injury are considered base period wages pursuant to Wis. Stat. § 108.02(4m)(d). Wis. Stat. § 108.02(26) specifically excludes from the definition of wages sickness or accident disability payments, unless they are worker's compensation payments."

DECISION

The decision of the administrative law judge, as modified, is affirmed. Accordingly, the claimant was not entitled to establish a benefit year as of week 9 of 2007.

Dated and mailed May 11, 2007
suttean . umd : 145 : 1  BR 309  BR 338

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner



MEMORANDUM OPINION

In her petition for commission review the employee indicates that she understands that she did not work and earn sufficient base period wages to establish a benefit year. The employee requests that the commission make a determination to either consider her disability payments to be "income" or to use an alternate base period, so her base period would contain an amount of money sufficient to allow her to be eligible for benefits.

The employee's first argument is that her disability payments were considered income, and as such, she was including that amount as income when she filed her tax return with the Wisconsin Department of Revenue. The employee's petition suggests that she considers the word "income" to be synonymous with "base period wages." The payments were income, and therefore subject to taxation. However, not all income is considered base period wages, even if it is subject to taxation. For example, winnings from a lottery or casino are considered income for tax purposes but are not included in the definition of base period wages. If a person has a rental property and receives rent from that property any profit after expenses are subtracted would also be subject to taxation as income although it would not be considered base period wages. At any rate, as explained by the ALJ, only things that are specifically defined as base period wages by the statutes can be included in the calculation of base period wages.

The employee's second argument is that the commission should include quarters 1 through 4 of 2005 in her base period as she last worked in quarter 4 of 2005. While it is unfortunate for the claimant, unemployment insurance payments are generally dependent upon a recent attachment to the labor market. Because the employee was disabled, she was not able to work for a significant amount of time. The employee opened her claim in week 9 of 2007. Therefore, under the law, her base period consists of quarter 4 of 2005, and quarters 1 through 3 of 2006, or as defined by the Handbook for Claimants at page 32, "the first four of the last five completed calendar quarters before the week you file an initial application." The "alternate base period" will allow a worker with insufficient wages to qualify for a claim using those quarters to use the "four most recently completed calendar quarters before the week you filed your initial application." The claimant construes "completed" to refer to when work was completed. However, the law refers to the most recent quarters that were concluded prior to the week the employee initiated her claim. In other words, since the employee initiated a claim in January of 2007, during an on-going quarter, or quarter one of 2007, the most recently competed quarter would be quarter 4 of 2006. The employee's base period would therefore normally include the four quarters preceding that quarter, or 4 of 2005 and 1, 2 and 3 of 2006. The alternate base period would include quarter 4 of 2006, but would not allow her to continue going backward until she reached a quarter containing wages. There is no provision in the law that permits determining the base period based on when the employee last worked. While the claimant considers this to be unfair, the commission must apply the law as it is written and does not have the discretion to disregard the law even when, as in this case, a claimant's situation is sympathetic.


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