SARA M NORTON, Employee
WINDING RIVERS LIBRARY SYSTEM, Employer
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 at the 2008 and 2009 hearings and the remand hearing. Based on its review, the commission makes the following:
The claimant worked for 33 years as an interlibrary loan searcher for a library system. She began working for the named employer in 1993 and last worked for the employer on December 28, 2007 (week 52), when it eliminated her position. She then started an unemployment benefit claim, effective with week 1 of 2008, the calendar week ending January 5. The department calculated her weekly benefit rate on that claim at $350. Effective December 29, 2007 (week 52), she began receiving a monthly pension in the gross amount of $1,135.20 from the Wisconsin Retirement System (WRS).
On January 18, 2008, the department issued a determination finding that as of week 1 of 2008, the claimant was receiving pension payments partially financed by the employer that when apportioned, reduced and calculated on a weekly basis amounted to $131.00. Both the employer and the claimant appealed that determination. Both parties appeared at the appeal hearing and presented their evidence. At that hearing, the employer contended that no portion of the WRS pension was funded by claimant contributions. On February 22, 2008, an appeal tribunal decision was issued which did not sustain the employer's contention and affirmed the department's initial determination. Neither party appealed the decision, and it became final on March 14, 2008.
Effective with week 2 of 2009, the calendar week ending January 10, the claimant established a new benefit year. During the applicable base period established by that claim, she performed services for the employer during the fourth quarter of 2007. In the new benefit year, she reported to the department that the gross amount of her monthly WRS pension had increased to $1,151.42. On January 30, 2009, the department issued a determination that found that as of week 2 of 2009, the claimant was actually receiving pension payments partially financed by the employer that when apportioned, reduced and calculated on a weekly basis amounted to $132.87. The employer timely appealed. At the appeal hearing, the employer again contended that no portion of the WRS pension was funded by the claimant's contributions.
The parties neither argued nor established that the requirements for the pension reduction were not satisfied. However, they disagreed on whether the pension was partially employee funded or totally employer funded. The claimant contended that at some point during her 33 years, she directly contributed to the WRS pension fund, while the employer contended its contributions entirely funded the pension. In essence, the dispute is whether the applicable weekly pension reduction is $265.74 or $132.87.(1)
There is no dispute that the employer contributed to the pension. The employer completed an Employee Transaction Report for the Department of Employee Trust Funds Wisconsin Retirement System each year from 1993 to 2005. The Report contains a column entitled "Deducted from Employee" which is separated into two different contributions: "Employee Required Contribution" and the "Benefit Adjustment Contribution." The reports do not reflect any contribution made by the employee. The employee has provided no evidence that she contributed to her pension before 1993 or after 1993.(2)
The commission therefore finds that as of week 2 of 2009, the claimant was actively receiving pension payments that when apportioned, reduced and calculated on a weekly basis amounted to $265.74. As a result, benefits otherwise payable for a completed week of partial or total unemployment are reduced by that amount, within the meaning of Wis. Stat. § 108.05(7).
The commission further finds that the employee was paid benefits in the amount of $5,009.00 for weeks 2 through 39 of 2009, of which $28.00 is included in other decisions, for which the employee was not eligible and to which the employee was not entitled, within the meaning of Wis. Stat. § 108.03(1).
The final issue to be decided is whether recovery of overpaid benefits must be waived. Wis. Stat. § 108.22(8)(c), provides that the department shall waive the recovery of overpaid benefits if the overpayment was the result of departmental error, and the overpayment did not result from the fault of the employee. Under Wis. Stat. § 108.02(10e)(a) and (b), departmental error is defined as an error made by the department in computing or paying benefits which results from a mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, by commission or omission, or from misinformation provided to a claimant by the department, on which the claimant relied.
The commission set aside the appeal tribunal decision and remanded this case because the decision was based on a department policy that seemed to conflict with Wis. Stat. 108.05(7)(e) and 26 USC 3304(a)(15).(3) The department's policy is that when an employee is receiving a pension from the Wisconsin Retirement System it considers that 50% of the pension was financed by the employee even though the employer made 100% of the contributions. At the remand hearing the department's witness testified that there was a "benefit adjustment contribution" that was made by all Wisconsin Retirement System participants until July 1, 1997, so anyone in the system prior to that date had made a direct contribution. Upon that basis the department considers that the pension is not totally employer funded. However, the employer's documentation predates 1997 and reflects no contribution by the employee. The department's witness has no first hand knowledge that the employee made such a contribution but relied on what was relayed by individuals with Employee Trust Funds. Based on the evidence presented in this case the department's policy does not apply and should not have been applied. The department witness further testified that the department would have applied that policy even if a party contended that the employer contributed 100%.
The commission further finds that waiver of benefit recovery is required under Wis. Stat. § 108.22(8)(c), because the overpayment did not result from the fault of the employee or the employer as provided in Wis. Stat. § 108.04(13)(f), and the overpayment was the result of a departmental error. See Wis. Stat. § 108.22(8)(c).
The decision of the administrative law judge is reversed. Accordingly, as of week 2 of 2009, benefits otherwise payable for any week of partial or total unemployment benefits are reduced by $265.74. Recovery of overpaid benefits is waived.
Dated and mailed November 12, 2009
Nortosa2 : 132 : 5 : UW 980 UW 990 BR 335.03
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
NOTE: Both parties have submitted documentation to the commission that was not submitted at the hearing. The commission's review is limited to evidence presented at the hearing. The commission reviews submitted documents to consider whether to order additional testimony. The employee's documentation does not reflect that she made a contribution to her pension. The employer's documentation, which includes information from ETF, supports the commission's decision in this case and therefore does not warrant further hearing.
Decision originally issued October 22, 2009 but set aside and reissued on
November 12, 2009 with modification to the overpayment amounts set forth in the
seventh paragraph under the "FINDINGS OF FACT AND CONCLUSIONS OF LAW."
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uploaded 2009/12/14