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


LINDA D CLEVELAND, Claimant

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98003433WU



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 the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The claimant was laid off by an employing unit on January 31, 1998. Shortly thereafter, she began a claim for unemployment benefits and initially reported that she was still working for another employing unit. Her weekly benefit rate was $290.

During the course of the claimant's benefit claim she was working and earned wages between $400 and $750 each week. In filing weekly claim certifications for weeks 7, and 10 through 21 of 1998, the claimant answered "no" to the question, "Did you work?" Based on the answers she provided on her claim certifications, she was paid benefits of $290 for each at issue, except week 20 when she was overpaid benefits of $252. During the weeks at issue she was overpaid benefits totaling $3732.00.

The claimant explained that she has trouble understanding and is easily confused. When she initiated her claim for benefits following her layoff, she was told that she was potentially eligible for benefits based on her previous employment. Based on that information she mistakenly thought it was appropriate to report that she was not working on her weekly claim certifications even though she was working somewhere else. Department records show that in weeks 6 and 8 of 1998, she did report work and wages on her weekly claim certifications. She offered no explanation for reporting wages in some weeks but not in others. She admitted that she was surprised that she was receiving unemployment checks when she was working, but did not contact the department for clarification.

The employe's actions constituted concealment of work performed and wages earned when filing for benefits. The employe has offered no reasonable explanation for her actions, particularly since she did report wages in some weeks. Pursuant to Wis. Stat. § 108.04(11)(b)(2), if concealment results in an overpayment of 50 percent or more of the claimant's weekly benefit rate, the forfeiture may not be less than one times the claimant's weekly benefit rate. The claimant was overpaid more than half her weekly benefit rate in each of the 13 weeks at issue. Therefore, the minimum forfeiture that can be assessed is $3770.

The commission therefore finds that in weeks 7, and 10 through 21 of 1998, the claimant concealed from the department work performed and wages earned or paid or payable for those weeks, within the meaning of Wis. Stat. § 108.04(11)(a), and shall forfeit $3770 in unemployment benefits that become payable by July 31, 2004, within the meaning of Wis. Stat. § 108.04(11)(b).

DECISION

The decision of the administrative law judge is modified to conform with the foregoing finding and, as modified, is affirmed. Accordingly, the claimant shall forfeit $3770 in unemployment benefits that become payable by July 31, 2004.

Dated and mailed: December 8, 1998
cleveli.urr : 132 : 3   BR 330

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission has modified the appeal tribunal decision to increase the forfeiture assessed to conform with the law.

cc: DIRECTOR GREG FRIGO
BUREAU OF LEGAL AFFAIRS


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