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

SCOTT P FLYNN, Claimant

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07003689JV


An administrative law judge 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 administrative law judge. Based on its review, the commission agrees with the decision of the administrative law judge, and it adopts the findings and conclusion in that decision as its own, except that it makes the following modifications:

1. In the first sentence of the appeal tribunal decision the date "week 44 of 2007" is deleted and the date "week 44 of 2006" is substituted therefor.

2. The second and third sentences in the fifth paragraph of the appeal tribunal's FINDINGS OF FACT and CONCLUSIONS OF LAW are deleted and the following substituted therefor:

"Where, as here, the circumstances of the fraud are minor and no overpayment occurred as a result, the department will generally recommend a forfeiture of .25 of the weekly benefit rate."

3. In the DECISION paragraph of the appeal tribunal decision, the amount "$632" is deleted and the amount "$79" is substituted therefor.

DECISION

The decision of the administrative law judge, as modified, is affirmed. Accordingly, the claimant shall forfeit $79 in unemployment benefits that become payable by August 17, 2013.

Dated and mailed November 21, 2007
flynnsc . umd : 164 : 1   BR 330

/s/ James T. Flynn, Chairman

Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

In his petition for commission review the claimant argues, as he did at the hearing, that he was focused on the separation from his manufacturing job and the fact that he quit the job with the postal service was not in his thoughts. The claimant contends that he did not intentionally omit this fact when filing his unemployment claim. The commission does not find this argument persuasive. The claimant was aware that he had submitted notice that he was resigning from the job with the postal service, and should have reported that fact to the department when asked. Unemployment benefits are paid almost entirely on the basis of information provided by claimants and there is an obligation on claimants to accurately disclose material facts to the department. The commission agrees with the appeal tribunal that the claimant intentionally concealed a material fact relating to his eligibility for benefits. However, in an accompanying decision, hearing #07003690JV, the commission found the claimant to be eligible for benefits notwithstanding the fact that he quit. Consequently, there is no overpayment. (1)   Because the department will generally recommend a forfeiture of .25 of the weekly benefit rate where there is no overpayment and no prior fraud, the commission has reduced the forfeiture to .25 of the weekly benefit rate.



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Footnotes:

(1)( Back ) Although the appeal tribunal presumably found that an overpayment of 50% or more of the weekly benefit rate resulted, the appeal tribunal decision erroneously referenced the statutory penalty for an act of concealment resulting in no overpayment or an overpayment of less than 50% of the weekly benefit rate. Where an act of concealment results in an overpayment of 50% or more of the weekly benefit rate, the law permits a penalty of not less than 1 or more than 4 times the weekly benefit rate. Wis. Stat. § 108.04(11)(b)2.

 


uploaded 2007/11/28