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

KRISTI L BARTMANN, Employee

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 10006053MD


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 employee is ineligible for benefits in weeks 27 through 52 of 2009 and weeks 1 through 15, and 19 through 21 of 2010. She is eligible for benefits in the amount of $121.00 in week 18 of 2010. She is required to repay the sum of $14,179.00 to the Unemployment Reserve Fund and shall forfeit $15,972.00 in unemployment benefits that become payable by October 1, 2016. This decision also results in an overpayment of FAC benefits that must be repaid by the employee. The employee will receive a separate "Notice of Benefit Overpayment, Form UCB-25" regarding the amount of FAC benefits that must be repaid, which is incorporated in and made a part of this decision.

Dated and mailed May 13, 2011

bartmk2 . usd : 135 : 1

 

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

MEMORANDUM OPINION

The employee contends that she was ignorant during her weekly filing when she incorrectly reported her hourly wage in place of her weekly gross wages. The employee argues in her petition for commission review that she believed the department would calculate her gross wages based on her reporting of her hourly wage and the number of hours she worked, even though the weekly claims required entering the gross amount of wages earned from each employer. The employee admitted at the hearing that she thought it was odd that she was receiving full weekly benefits every week even though she was earning weekly wages that ranged from $60.00 to several hundred dollars in those weeks. The employee did not contact anyone from the department to question the matter. The employee also admitted that she did not refer to the Claimant Handbook after she started claiming weekly benefits. The employee believed that someone from the department would contact her if she was doing something wrong. The employee argues that she did not intentionally mislead or make a false statement or misrepresent as the ALJ's decision insinuates.

A finding of concealment is a wilful act not based on ignorance or lack of knowledge and there must be an intent to receive benefits to which the individual knows he or she is not entitled. However, direct evidence of intent is not necessary since it may be inferred from acts, words, or statements. See Kamuchey v. Trzensniewski, 8 Wis.2d 94, 99 (1959) (citing Am Jur. Fraud and Deceit § 77, para. 851); Brenda R. Mortensen, UI Hearing No. Dec. 05002751JV (LIRC Dec. 14, 2005). Here the employee admitted that she thought it was odd she was receiving full weekly benefits each week even though she was earning weekly wages that ranged from $60 to several hundred dollars during those weeks. The administrative law judge noted that had there been only several weeks of improperly made claims before the employee figured out her error, a finding of a simple mistake may have been made. Here, however, the employee failed to correct her method of claiming after it became clear to her that there was something wrong and entered the incorrect information on 44 weekly claims. As such this failure supports a conclusion that the employee misled the department with the intent to receive benefits to which she was not entitled by improperly reporting her wages earned during the numerous weeks at issue.

The appeal tribunal decision is affirmed. The employee concealed her weekly gross wages in the weeks in question within the meaning of Wis. Stat. § 108.04(11) and as such pursuant to § 108.05(3)(d) the employee is ineligible to receive benefits for any week in which the claimant concealed wages as provided in Wis. Stat. § 108.04(11)(b). The overpayment may not be waived pursuant to Wis. Stat. § 108.22(8)(a) and (c) because no department error existed. The forfeiture amount is also supported by the record based upon the 44 acts of concealment, pursuant to Wis. Stat. § 108.04(11).

cc: Attorney Ryan V. Doherty
Wendy's Lasting Impressions Floral
Scenic View Country Club
West Bend Family Furniture, Inc.


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uploaded 2011/08/03