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

ELIAS P GARZA, Employee

HOME DEPOT USA INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 09001835MD


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 its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the claimant is ineligible for benefits in weeks 35 through 51 of 2007. The claimant is required to repay the sum of $4,324 to the Unemployment Reserve Fund.

Dated and mailed July 24, 2009
garzael . usd : 110 : 1   BR 335.04

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

This case concerns overpayments created when a claimant received Unemployment Insurance (UI) benefits for weeks for which he also received temporary total disability payments based on a Worker's Compensation (WC) claim. The claimant is not disputing that he was not entitled to the UI benefits for the weeks. He argues, however, that he should not be required to repay the benefits because, he asserts, the overpayment was the result of departmental error and was not his fault.

At the hearing in this matter, the claimant testified that when he started his claim a department employee named Justin told him that he could receive both WC benefits and UI benefits at the same time. However, this testimony was inconsistent with the statement made by the claimant, in his appeal of the department's determination, that it was a department employee named Lynn who had told him this. This inconsistency leads the commission to doubt the reliability of the claimant's assertion that he was given incorrect information by the department. The commission instead agrees with the ALJ, who found that the more plausible scenario is that the claimant was given the correct information, but misunderstood it. Thus, as to the benefits and weeks at issue in this case (regular UI benefits for weeks 35 through 51 of 2007), it was not shown that there was "departmental error".

The commission also agrees with the ALJ that the primary reason the claimant was paid benefits in error was that he failed to provide the department with correct and complete information when filing his weekly claims for benefits beginning in week 35 of 2007.

For one thing, in filing his weekly claims for the weeks at issue the employee consistently answered "yes" to the question asking if he was able to work and available for work, even though the "Claiming Wisconsin Unemployment Benefits" booklet, which the employee acknowledged receiving, informs claimants that they should answer that question "no" if they could not work full-time because they were physically unable to work. The booklet gives as an example:

For example, you could not accept work with an employer (including your regular employer) because you were sick or injured...

While the claimant asserted that he was able to work while he was claiming benefits, he acknowledged that he was subject to a number of physical restrictions ("couldn't bend or sit or do physical activity"), and he sought and received temporary total disability benefits for the weeks at issue. At a minimum, the claimant should have recognized that there was an issue presented as to how he should answer this question, which should lead him to take the step of contacting the department to inform it of the facts of his situation and ask how to proceed.

In addition, in filing his weekly claims the employee consistently answered "no" to the question asking if he had worked in the week, even though the "Claiming Wisconsin Unemployment Benefits" booklet prominently informs claimants that WC payments are considered wages and that if WC payments are received for a week the claimant should contact a claims specialist.

For waiver of recovery of erroneously paid benefits to be appropriate, it must be found that the overpayment was the result of a departmental error, and that it did not result from the fault of the employee. Wis. Stat. § 108.22(8)(c). Neither of these conditions were met here, and therefore recovery of the erroneously paid benefits cannot be waived.

For these reasons, the commission agrees with and affirms the decision of the ALJ.



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uploaded 2009/07/30