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

MARK A HARRIS, Claimant

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 09002543MD


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 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 started a Wisconsin unemployment benefit claim effective with week 14 of 2008, the calendar week ending April 5. The department then paid him his maximum benefit amount on that claim thereby exhausting it. The department subsequently notified him of his potential eligibility for benefits under the Emergency Unemployment Compensation benefits (EUC). On October 7, 2008, the department mailed the claimant an EUC08-707 setting forth the amount of EUC available to him. That form advised him to contact a claims specialist if he worked in another state within the last 18 months. The claimant contacted a claims specialist and advised the claims specialist of his Missouri employment. The specialist advised the claimant to keep filing his weekly claims. The claimant did so and the department paid him EUC benefits totaling $7,810 for weeks 41 of 2008 through 13 of 2009.

The department subsequently determined that the claimant was eligible for regular unemployment benefits in Missouri as of week 41 of 2008, the calendar week ending October 11. He then contacted Missouri and was allowed to backdate his Missouri unemployment claim to week 41 of 2008. He has since received regular unemployment benefits on that Missouri claim for those weeks.

The issue to be decided is whether the claimant meets the statutory definition of an "exhaustee" so as to be eligible for Emergency Unemployment Compensation (EUC) as of week 41 of 2008.

The Emergency Unemployment Compensation program was created on June 30, 2008, by the Supplemental Appropriations Act of 2008 (P. L. 110-252). It provides up to 13 additional weeks of federally-funded unemployment benefits available to unemployed individuals who have exhausted all rights to collect regular unemployment compensation under state or federal law with respect to a benefit year and have no rights to collect regular unemployment compensation with respect to a week under such law. On November 21, 2008, the Unemployment Compensation Extension Act of 2008 (P. L. 110-449) expanded EUC to 20 weeks nationwide and created a second tier of 13 more weeks of EUC for individuals in states with high unemployment rates.

In this case, it is undisputed that the claimant was eligible for regular unemployment benefits through Missouri as of week 41 of 2008. Accordingly, he was not "exhaustee" within the meaning of the EUC program as of that week. As a result, he is not eligible for the EUC payments made to him totaling $7,810 for weeks 41 of 2008 through 13 of 2009.

The remaining issue is whether the claimant must repay the erroneous EUC benefits he received.

The federal law governing EUC payments provides that individuals who receive EUC benefits to which they are not entitled shall repay such amounts unless the payment of such amounts was without fault on the part of the individual and such repayment would be contrary to equity and good conscience. (P.L. 110-252).

The U.S. Department of Labor has advised states that the state may apply its own waiver law if the state law requires the state to determine that the erroneous payment was without fault on the part of the claimant and recovery would be contrary to equity and good conscience. UIPL 23-08, Attachment A, page 11. The State of Wisconsin has determined to apply state waiver law to determine whether EUC benefits must be repaid.(1) Wis. Stat. § 108.22(8)(c), provides that the department shall waive the recovery of erroneously paid benefits if the overpayment was the result of departmental error, and the overpayment did not result from the fault of the claimant. 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 claimant was not at fault in causing the erroneous EUC payments. The claimant's testimony was unrebutted that on October 9, 2008, he advised a claims specialist that he had worked out of state.

The commission therefore finds that as of week 41 of 2008, the claimant was not eligible to begin a claim for federal Emergency Unemployment Compensation because he was not an "exhaustee" within the meaning of the Supplemental Appropriations Act of 2008 (P.L. 110-252) and the Unemployment Compensation Extension Act of 2008 (P.L. 110-449).

The commission further finds that the claimant was paid EUC benefits in the amount of $7,810.00 for week 41 of 2008 through week 13 of 2009, for which the claimant was not eligible and to which the claimant was not entitled.

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 claimant as provided in Wis. Stat. § 108.04(13)(f), but was the result of a departmental error. See Wis. Stat. § 108.22(8)(c).

DECISION

The decision of the administrative law judge is affirmed in part and reversed in part. Accordingly, the claimant is not eligible for federal EUC as of week 41 of 2008. The claimant is not required to repay the sum of $7,810.00.

Dated and mailed October 30, 2009
harrima : 132 : 5 : BR 335.03

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The commission did not consult with the ALJ with the ALJ regarding witness credibility and demeanor. The claimant appeared by telephone in this matter. The claimant's testimony was unrebutted, and he set forth in his May 3, 2009, appeal letter, that he informed the department in October of 2008 of his out-of-state work. The commission agrees with the ALJ that the claimant was not at fault for the erroneous payment of benefits but disagrees with the ALJ's application of the waiver provision.

 


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Footnotes:

(1)( Back ) The State of Wisconsin used its overpayment waiver provision in lieu of the federal standard when applying the Temporary Extended Unemployment Compensation Act (TEUCA) of 2002. The TEUC waiver provision, like the EUC08 provision, provided for waiver if the claimant was without fault and repayment would be contrary to equity and good conscience. The state standard is the same as it was in 2002.

 


uploaded 2009/12/14