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

JAMES D KURER, Employee

WISCONSIN INSURANCE GROUP INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 10610413MW


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, except that it makes the following modifications:

Delete the 11th, 12th, 15th and 16th paragraphs after the FINDINGS OF FACT and CONCLUSIONS OF LAW.

Delete the 1st sentence of the 1st paragraph of the DECISION paragraph and the 2nd paragraph under the DECISION and substitute therefor:

DECISION

The decision of the administrative law judge, as modified, is affirmed. The department's determination is affirmed with respect to the quitting. Accordingly the employee is ineligible for benefits beginning in week 15 of 2010, and until four weeks have elapsed since the end of the week of quitting and the employee has earned wages in covered employment performed after the week of quitting equaling at least four times the employee's weekly benefit rate which would have been paid had the quitting not occurred.

This matter is remanded to the hearing office to hold a hearing and issue a decision on whether an overpayment is created and, if created, whether the recovery of overpaid benefits must be waived. Testimony must be adduced to determine if benefits were paid due to the employer's failure to provide complete and correct information to the department, due to the employee's failure to provide complete and correct information to the department, or due to departmental error.

Dated and mailed May 19, 2011

kurerja . umd : 145 : 6 BR 310 : BR 330 : BR 335 : PC 713

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

MEMORANDUM OPINION

It is the employer's position that the employer provided correct and complete information regarding the employee. Further, the employer argues that the employee, not the employer was at fault with respect to the creation of an overpayment. The ALJ in this case found that since the employer did not appeal the initial determination which held that the employer failed to provide correct and complete information on a required report, the employer was at fault. However, the commission has held that if one party appeals a determination, the entire determination has been appealed and therefore an employer which did not appeal that part of the determination finding that it was at fault for the overpayment could reasonably expect to be allowed to present evidence on that issue at a hearing which was scheduled because the employee appealed the adverse determination. See Whitmore v. Levy Restaurants at Lambeau Field, UI Dec. No. 06603644MW, (LIRC October 13, 2006). Thus, the commission concludes that the employer's failure to specifically appeal a portion of a favorable initial determination does not bar the employer from presenting evidence at the hearing on the issue of whether it is at fault for the overpayment.

The commission remands this case because while the ALJ did obtain the permission of the parties to make a determination, based on the record, of the overpayment, the commission believes that the given the fact that the employer wishes to present a significant amount of material on the matter, this case should be remanded so that the parties can present testimony on the overpayment and employer/employee fault issue.


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