SUSAN K SABRE, Claimant

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 by the department.

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 makes the following:

The claimant's most recent employment was as a sales person for a retail business in La Pointe, Wisconsin. The claimant's last day of work was on or about October 21, 2007 (week 43).

The issue to be decided in this case is whether the claimant's request to set aside her benefit year initiated in week 43 of 2007, may be granted.

The statutes provide that the department shall grant a request to cancel a benefit year if the request is voluntary, benefits have not been paid to the claimant and the claimant's eligibility is not suspended. Where the claimant does not meet all those requirements, the administrative code provides for other conditions where the department may set aside a benefit year. Wis. Admin. Code § 129.04(2) provides:

(2) GRANTING A REQUEST TO SET ASIDE A BENEFIT YEAR. Under s. 108.06 (2)(d), Stats., the department shall grant the claimant's request and cancel the benefit year if the request is voluntary, benefits have not been paid to the claimant, and at the time the department acts upon the request for that benefit year the claimant's benefits eligibility is not suspended. If the claimant does not meet all of the requirements under s. 108.06 (2) (d), Stats., the department may set aside the benefit year if the conditions in both pars. (a) and (b) are met:

(a) The department has recovered, or has waived the recovery of, all benefits paid to the claimant for that benefit year or 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.

(b) Any of the following exceptional circumstances apply to the claim:

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 establishment of the claimant's benefit year.

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

4. The claimant established a benefit year in the two weeks immediately preceding the first full week of a new calendar quarter, but a benefit year established as of the first full week of the new calendar quarter would give the claimant a higher weekly benefit rate or a higher maximum benefit amount.

5. The claimant's first payment in the benefit year was made after an additional initial claim was filed.

6. The claimant is eligible to start a benefit year in another state.

7. The cancellation of wage credits under s. 108.04 (5), Stats., reduces the claimant's maximum benefit amount to less than 5 times the weekly benefit rate.

8. Other exceptional circumstances exist over which the claimant has no control that are related to establishing a benefit.

The claimant initiated a claim for benefits on October 26, 2007. The claimant thought she had to initiate her claim immediately after she became unemployed. The claimant used the claimant handbook to calculate her benefits and determined that her weekly benefit amount would be $180. The claimant arrived at this amount because she used quarter 4 of 2006 and quarters 1 through 3 of 2007. The claimant used these quarters because she had filed in October of the prior year and at that time the department used an alternate base period because the claimant would not qualify for benefits had the department used the regular base period of the first four of the past five calendar quarters. The claimant was aware that the department had used an alternate benefit year in 2006, but forgot this fact when she filed her claim and established her benefit amount.

Using the regular base period, the claimant qualified for benefits of $59 per week. The claimant had wages of over $4,000 in quarter 3 of 2007, but this quarter was not included in her base period.

Upon learning the reason that her checks were smaller than she anticipated, the claimant requested that the department set aside her benefit year. Since benefits had been paid to the claim when the claimant made the request to set aside her benefit year, the commission must determine whether any of the conditions set forth in the administrative rule apply to the claimant. In this case, the only condition that might potentially apply is whether there were exceptional circumstances over which she had no control that related to her establishing a benefit year. In this case, the claimant, was aware of the way in which her benefits would be calculated, but made a mistake when she calculated benefits herself because she forgot that in the prior year the department used an alternate benefit year. The claimant had the handbook, and had she read carefully the section about her base period, she would have understood what quarters would be used to compute her base period wages. The claimant did not ask the department, prior to filing her claim, to verify her weekly benefit rate.

The claimant in this case did not meet the statutory conditions that would allow the department to set aside her benefit year. The claimant did not meet the conditions of the administrative code which would have allowed the department to set aside her benefit year even if she did not meet the statutory requirements.

The commission therefore finds that the claimant's benefit year that was established as a result of the claimant's initial claim filed on October 26, 2007, remains in effect, pursuant to Wis. Stat. § 108.06(2)(d) and chapter DWD 129 of the Wisconsin Administrative Code.

The claimant was paid benefits in the amount of $887.00 for weeks 2 through 7 of 2008 for which she was not eligible and to which she was not entitled.

The commission further finds that waiver of benefit recovery is required under Wis. Stat. § 108.22 (8)(c), because the overpayment was the result of a departmental error, and the overpayment did not result from the fault of the claimant as provided in Wis. Stat. § 108.04 (13)(f).

The decision of the administrative law judge is reversed. Accordingly, the department shall not cancel the claimant's benefit year that was established as a result of the claimant's initial claim filed on October 26, 2007. The claimant's overpayment is waived.

Dated and mailed February 26, 2008
sabresu . urr : 145 : 1 CP 395

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

The commission did not discuss witness credibility and demeanor with the ALJ prior to reversing her decision. The commission did not reverse the ALJ's decision based on a different impression of witness credibility and demeanor. Rather, the commission reverses the ALJ's decision as a matter of law.

cc: Daniel J. LaRocque

[Ed. note: The decision is reproduced here as affected by a corrective amendment issued on March 6, 2008]

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