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

JUAN  J  SENDEJO JR, Employee

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07607958MW


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 it has reviewed the evidence submitted to the ALJ. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The claimant worked in a seasonal position. He is laid off each winter due to a lack of work. The claimant filed for benefits on September 7, 2007 (week 36) and talked with a claims specialist. The claims specialist did not provide the claimant with information on benefit years or alternate filing.

The claimant began receiving weekly benefits in the amount of $74 per week. Concerned at the low benefit rate, he talked with his co-workers and discovered that many of them were receiving the maximum benefit rate. The claimant thought that the $74 weekly benefit rate was for 2007 and that his rate would increase in 2008. The claimant called the department to see if his rate would increase and was told it would remain at $74 per week. He then asked that his benefit year be set aside but his request was denied.

The issue to be decided in this case is whether the claimant's request to set aside his 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 year.

The ALJ concluded that "had the department informed the claimant that if he waited until 2008, to initiate his claim and establish a benefit year, his weekly benefit rate would have been $355 per week. A lay person such as the claimant who is not immersed in the policies and procedures surrounding the filing of claims cannot be expected to know the varying consequences of initiating claims at different times of the year. The department's failure to advise the claimant of the substantial discrepancy in benefit rates between the two benefit years was an error relating to the claimant's establishing a benefit year."

The claimant in this case filed for benefits on September 7, 2007. The department witness who testified at this hearing testified that the claimant would not be eligible in January 2008 with a regular base period, but would only qualify if an alternate base period, that included wages earned in the fourth quarter of 2007, was used. The department could not have known, as of September 7, 2007, that the claimant would be able to earn a significant amount of wages during October, November and December of 2007. The department was not in a position to predict what the claimant might have earned in that quarter. Further, waiting until 2008 to file a claim would only have been beneficial to the claimant had he known he would not only secure a job for that quarter, but would be laid off from that position in January. The claimant did not indicate that he requested information from the department about his benefit rate, or the manner in which it was calculated. The claimant testified that even when he received a $74 payment, he did not contact the department for information about his claim. He simply assumed that the benefit year would match the calendar year but gave no reason why he believed this to be the case.

The claimant in this case did not meet the statutory conditions that would allow the department to set aside his benefit year. The claimant did not meet the conditions of the administrative code which would have allowed the department to set aside his benefit year even if he 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 September 7, 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 $281 for weeks 2 through 5 of 2008; $355 for weeks 6 and 7 of 2008; $281 per week for weeks 8 through 11 of 2008; $309 for week 12 of 2008 and $355 for weeks 13 and 14 of 2008 for which he was not eligible and to which he 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).

DECISION

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 September 7, 2007. The claimant's overpayment is waived.

Dated and mailed April 11, 2008
sendeju . urr : 145 : 2 CP 395  BR 335.01

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

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.



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