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

ROBERT L KELLNER, Employee

MARSHFIELD BUS SERVICE CHARTER TOURS, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 08201650EC


The commission issued a decision on August 27, 2008 that found that the employee quit his work with the employer in week 40 of 2007, and remanded the matter for a determination as to whether an overpayment should be created and whether any erroneous payment of benefits was the result of employee, employer or department error and whether any overpayment should be waived.

The department held a hearing pursuant to the commission's order. 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:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee terminated his employment with the employer during week ending October 6, 2007 (week 40). He made a claim for unemployment benefits for that week. However, when asked the question in his weekly claim, "Did you quit a job?", he responded, "No." He was paid unemployment benefits for that week and for a number of weeks thereafter.

The employee's receipt of unemployment benefits arose because of his failure to report his quitting to the department. There was no error on the part of the department giving rise to the erroneous payment of those benefits.

The next issue is whether the employer was at fault for the erroneous payment of benefits.

It is the department's position that the employer is at fault for the overpayment of benefits to the claimant because it did not provide information requested on a department form. The commission agrees.

Prior to the week of his quitting, the employee had been claiming partial unemployment benefits and working on a part-time basis for the employer. He did this during the week ending September 29, 2007 (week 39). The employer was sent a form (UCB-23) for that week which gave the employer to opportunity to dispute the amount of wages that the employee had reported as having received for that week. Included on the form was a section which instructed the employer to "Put an X in the box of any eligibility issues that apply to this claim." Among the choices provided to the employer was "Quit." The employer failed to return this form even though the form had been mailed to the employer after the employee had already quit the job.

The employer conceded having received the UCB-23 form in question and conceded that it had failed to return the form to the department. Its representative explained that the employer had no idea it was to raise issues arising from future weeks on the form in question. The form itself requested information only for the week ending September 29, 2007 (week 39). When the form inquired as to eligibility issues related to this "claim," the employer construed the term "claim," to refer to the claim for benefits for that particular week. It assumed that since the employee had quit the job, he would discontinue his claim for benefits. It received no information thereafter, at least for a lengthy period of time, which gave it reason to believe otherwise.

The UCB-23 form which was received by the employer two days after the employee quit, asks questions about a specific week of issue for wages but then requests general information as to any other eligibility issues that the employer may be aware of. The question is clear and the employer's reading of the question is unreasonable. The employer had the opportunity to raise the quit issue by filling out and returning the UCB-23 to the department, but it failed to do this. In King v. Crown Services, UI Dec. hearing No. 04607687MW (LIRC May 27, 2005), the commission held, in a similar situation, that because the employer failed to return a UCB-23 form was employer was at fault for the overpayment of benefits.

The employer is responsible for benefits of $2,845 erroneously paid to the employee.

The commission therefore finds that the employer failed to file a required report in a timely manner, within the meaning of Wis. Stat. § 108.04(13), and as a result, benefits were improperly paid to the employee.

DECISION

The decision of the administrative law judge is modified and as modified, is affirmed in part and reversed in part. Accordingly, the employee was overpaid unemployment benefits in the amount of $2,845 and is required to repay that sum to the Unemployment Reserve Fund. Those benefits paid to the employee in error as a result of the employer's failure will be charged to the employer's account.

Dated and mailed December 23, 2008
kellnlu . urr : 145 : 1    BR 319.1

/s/ 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 but reverses that part of the ALJ's decision having to do with employer fault as a matter of law.

 

cc: Attorney Daniel J. La Rocque


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