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

SHANNON M HEIN, Employee

PIZZA GARDEN, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 10404651AP


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 makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The department issued a determination which found that the employee quit her work for the employer but not for any reason that permits immediate benefit payment. The determination also found that the employee was erroneously paid benefits that she was required to repay. The determination further found that the employer's account would remain charged for the erroneously paid benefits because the employer did not question the employee's eligibility on a required report, form UCB-23.

The employer appealed that portion of the determination which found that benefits were erroneously paid because it failed to question the employee's eligibility on a required report.

A department disputed claims analyst testified that when a claimant reports weekly wages on his weekly claims certification at an amount low enough to qualify for unemployment benefits, the department's automated system sends the employer a "Wage Verification/Eligibility Report," form UCB-23. The form requests that the employer place an "X" in any of the boxes corresponding to potential eligibility issues, and lists a due date for the form "only if correcting or adding information." The department's witness testified that an entry on the department's BPMQ screen indicated that a UCB-23 for week 44 of 2009 was mailed by the department. The department's witness conceded that the entry on the BPMQ screen showing that a UCB-23 was sent to the employer could have been an error in data entry. Finally, the department's witness indicated that the department was unable to provide a personalized copy of the UCB-23 sent to the employer.

The issue to be decided is whether the employee was improperly paid benefits as a result of the employer's failure to file a required report in a timely manner, or as a result of the employer's failure to question the employee's benefit eligibility.

The department's witness indicated that the record of the mailing of the UCB-23, including the date and the employer's address, is on the department's BPMQ screen. The department's witness further testified that it was possible that the entry on the BPMQ screen showing that the UCB-23 was sent to the employer was an error made by the person who made the entry. The BPMQ screen referred to at the hearing was not admitted into the record as an exhibit.

Wisconsin Statute § 108.09(4o) provides:

(4o) DEPARTMENTAL RECORDS RELATING TO BENEFIT CLAIMS. In any hearing before an appeal tribunal under this section, a departmental record relating to a claim for benefits, other than a report specified in sub. (4m), constitutes prima facie evidence, and shall be admissible to prove, that an employer provided or failed to provide to the department complete and correct information in a fact- finding investigation of the claim, notwithstanding that the record or a statement contained in the record may be uncorroborated hearsay and may constitute the sole basis upon which issue of the employer's failure is decided, if the parties appearing at the hearing have been given an opportunity to review the record at or before the hearing and to rebut the information contained in the record. A record of the department that is admissible under this subsection shall be regarded as self authenticating and shall require no foundational or other testimony for its admissibility, unless the circumstances affirmatively indicate a lack of trustworthiness in the record. If such a record is admitted and made the basis of a decision, the record may constitute substantial evidence under s. 102.23 (6). For purposes of this subsection, "departmental record" means a memorandum, report, record, document, or data compilation that has been made or maintained by employees of the department in the regular course of the department's fact- finding investigation of a benefit claim, is contained in the department's paper or electronic files of the benefit claim, and relates to the department's investigative inquiries to an employer or statements or other matters submitted by the employer or its agent in connection with the fact-finding investigation of a benefit claim. A departmental record may not be admitted into evidence under this subsection or otherwise used under this subsection for any purpose other than to prove whether an employer provided or failed to provide to the department complete and correct information in a fact-finding investigation of a claim.

(Emphasis added.)

The department's testimony was seemingly contradictory on the one hand stating that the mailing of the UCB-23 was automatically done by the system and then stating the entry signifying that mailing could have been the result of human error. The UCB-23 allegedly sent to the employer was not presented to the employer at or before the hearing as the department cannot reproduce that form. The BPMQ which the department indicated established that the UCB-23 was mailed to the employer was not admitted into the hearing record.

The record before the commission is insufficient to conclude that the department mailed the UCB-23 to the employer.

The commission therefore finds that the employer did not failed to file a required report in a timely manner, within the meaning of Wis. Stat. § 108.04(13).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employer's account will not be charged for benefits erroneously paid to the employee.

Dated and Mailed August 31, 2011

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

MEMORANDUM OPINION

The commission did not consult with the ALJ who presided at the hearing regarding her impressions of witness credibility and demeanor. The commission's reversal is not based on the credibility of the witnesses but on the sufficiency of the evidence presented.

heinsh . urr : 132 : 9

cc: Attorney David D. Daul


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