CARLOS D. GARNER, Employee
PROFESSIONAL SERVICES GROUP INC, Employer
On December 31, 2009, a determination was issued finding that as of week 36 of 2009 (the calendar week ending September 5, 2009), the employee voluntarily terminated his employment and his quitting was not within any exception to allow for the immediate payment of benefits. The effect of the determination was to deny benefits for four weeks and until the employee earned four times his weekly benefit rate, $1,208.00 in subsequent covered employment. The determination also found that the employee was overpaid and had to repay (1) unemployment insurance benefits in the amount of $4,792.00 and (2) Federal Additional Compensation (FAC) benefits, with a separate notice regarding the amount of FAC payments to be sent.
The employee filed a timely appeal and a hearing was scheduled for April 8, 2010. The hearing notice set forth the issues for the hearing, namely whether the nature of separation of employment in week 36 of 2009 disqualified the employee from unemployment insurance benefits, whether he was able to work and available for work and whether he was overpaid unemployment insurance benefits that had to be repaid or whether repayment should be waived.
The employee appeared at the hearing as did the employer. ALJ Rakowski started the hearing and, after the employee explained that he was primarily disputing the overpayment, the ALJ indicated that he did not have jurisdiction of the overpayment issue and the only issue to be resolved by the hearing was the nature of separation. Based upon this and assurance from the ALJ that he would provide the employee a telephone number to contact a department representative regarding his overpayment concerns, the employee withdrew his request for a hearing.
A withdrawal decision, under hearing number 10600212MW, was mailed to the employee on April 8, 2010, indicating the determination remained in effect (necessarily including the overpayment findings).
On February 21, 2011, the employee submitted correspondence to the Milwaukee Hearing Office stating his "ongoing issue" with the overpayment amount and requesting a hearing on the matter.
On March 10, 2011, the ALJ set aside the withdrawal decision, "for further consideration."
On Tuesday, March 29, 2011, a hearing was scheduled before ALJ Peters. The hearing notice indicated that the issue was whether the appellant had good cause to retract a withdrawal of an appeal. At the hearing, the employee testified that he disputed the overpayment amount, did not intend to withdraw his appeal and had waited until March 2011 to challenge the withdrawal because he was attempting to set up a payment plan on a correct overpayment amount. There is no evidence that the digital recording of the actual withdrawal was reviewed.
On April 5, 2011, ALJ Peters issued a decision, under hearing number 11602744MW, dismissing the employee's request to retract his withdrawal and finding that the initial determination should remain in effect.
On April 14, 2011, the employee petitioned for commission review of the April 5, 2011 decision and again objecting to the overpayment amount.
The employee's petition is a timely request for review of the April 5, 2011 appeal tribunal decision.
The commission's authority to act is set forth by Wis. Stat. § 108.09(6) Commission Review, which provides, in material part, as follows:
(a) The department or any party may petition the commission for review of an appeal tribunal decision, pursuant to commission rules, if such petition is received by the department or commission or postmarked within 21 days after the appeal tribunal decision was mailed to the party's last-known address. The commission shall dismiss any petition if not timely filed unless the petitioner shows probable good cause that the reason for having failed to file the petition timely was beyond the control of the petitioner. If the petition is not dismissed the commission may take action under par. (d).
(c) On its own motion, for reasons it deems sufficient, the commission may set aside any final determination of the department or appeal tribunal or commission decision within 2 years from the date thereof upon grounds of mistake or newly discovered evidence, and take action under par. (d). The commission may set aside any final determination of the department or any decision of an appeal tribunal or of the commission at any time, and take action under par. (d), if the benefits paid or payable to a claimant have been affected by wages earned by the claimant which have not been paid, and the commission is provided with notice from the appropriate state or federal court or agency that a wage claim for those wages will not be paid in whole or in part.
(d) In any case before the commission for action under this subsection, the commission may affirm, reverse, modify or set aside the decision on the basis of the evidence previously submitted, may order the taking of additional evidence as to such matters as it may direct, or it may remand the matter to the department for further proceedings.
Commission Review of Appeal Tribunal Decision dated April 5, 2011
Wis. Stat. § 108.09(4)(a) APPEALS provides:
(a) Opportunity to be heard. Unless the request for a hearing is withdrawn, each of the parties shall be afforded reasonable opportunity to be heard, and the claim thus disputed shall be promptly decided by such appeal tribunal as the department designates or establishes for this purpose.
Wis. Stat. § 108.09(4)(f) Postdecision changes provides:
1. Except as provided in par. (e) 3., within 21 days after its decision was mailed to the parties the appeal tribunal may on its own motion amend or set aside its decision and may thereafter make new findings and issue a decision on the basis of evidence previously submitted in such case, or the same or another appeal tribunal may make new findings and issue a decision after taking additional testimony.
2. Unless a party has filed a timely petition for review of the appeal tribunal decision by the commission, the appeal tribunal may set aside or amend an appeal tribunal decision, or portion thereof, at any time if the appeal tribunal finds that:
a. A technical or clerical mistake has occurred; or
b. The benefits paid or payable to a claimant have been affected by wages earned by the claimant which have not been paid, and the appeal tribunal is provided with notice from the appropriate state or federal court or agency that a wage claim for those wages will not be paid in whole or in part.
3. Unless a party has filed a timely petition for review of the appeal tribunal decision by the commission, the appeal tribunal may, within 2 years after the date of the decision, reopen its decision if it has reason to believe that a party offered false evidence or a witness gave false testimony on an issue material to its decision. Thereafter, and after receiving additional evidence or taking additional testimony, the same or another appeal tribunal may set aside its original decision, make new findings and issue a decision.
Also, Wis. Admin. Code § DWD 140.05 Withdrawal of appeal and retraction provides:
(1) An appellant may withdraw its appeal at any time before the issuance of a decision on the merits by notifying the hearing office or by choosing not to continue to participate in a hearing. The administrative law judge shall issue a withdrawal decision after determining that an appeal has been withdrawn.
(2) An appellant may submit a request to retract its withdrawal and reinstate its appeal. The retraction request shall be in writing and state a reason for the request. The administrative law judge may not grant a request to retract a withdrawal unless the request establishes good cause for the retraction and is received within 21 days after the withdrawal decision was mailed to the appellant.
(3) If the hearing office receives a timely retraction request before the issuance of a withdrawal decision and the request establishes good cause for the retraction, the administrative law judge shall acknowledge the request by letter to the appellant. If a timely retraction request is received by the hearing office after issuance of the withdrawal decision and the request establishes good cause for the retraction, the administrative law judge shall issue a decision setting aside the withdrawal decision and the hearing office shall schedule another hearing.
(4) If the hearing office receives a retraction request before or after the issuance of a withdrawal decision and the request does not establish good cause for the retraction, the administrative law judge shall deny the request by letter to the appellant.
In this case, the procedure followed by ALJ Peters in conducting a hearing on the issue of the withdrawal retraction is similar to that followed by hearing offices in cases of failure to appear or late appeals. However, the failure to appear and late appeal procedures for such hearings are set forth statutorily. No such statutory language exists for withdrawals and given the limitations on post decision changes set forth in the above statute and code provisions, the commission finds that the ALJ had no authority to conduct a hearing or issue a decision on the merits of the retraction request that was received 10 months after the withdrawal was issued. Thus, the April 5, 2011, appeal tribunal decision of ALJ Peters should be set aside.
Commission Review of Set Aside Decision dated March 10, 2011
Read in conjunction with the language of the previously referenced statutory and administrative code provisions, which only allows set asides if the retraction request establishes good cause, ALJ Rakowski did not have the authority to issue a set aside for "further consideration" eleven months after the withdrawal was issued. Therefore, the set aside should also be set aside.
The results of the above leave the withdrawal as the final decision in this case.
Commission Review of Withdrawal Decision
Although withdrawals were originally intended not to be appealable, the format of the withdrawal itself is treated by the commission as an appealable decision. While there have been changes to the format of the withdrawals issued by the department since the key case of Glasschroeder v. A 1 A Plus, UI Dec. Hearing Nos. 03401009AP & 03401010AP (LIRC March 4, 2004), the changes are minor and the commission has continued to review withdrawal decisions.
Correspondence similar to the employee's is treated as a late petition for review of the withdrawal decision. See Giesen v. Schutt Industries of Clintonville WI Inc., UI Dec. Hearing No. 07402172AP (LIRC January 18, 2008).
Next, because the withdrawal issued by the department has "NOT APPLICABLE" written in the appeal deadline section, the Commission follows its past practice of finding that the "lateness" of the petition is for a reason beyond the employee's control. See Glasschroeder.
In reviewing whether a retraction request should be granted, the commission uses the standard set forth in Wis. Admin. Code § DWD 140.05(2); it provides that an appellant's request to retract a withdrawal and reinstate an appeal:
...shall be in writing and state a reason for the request. The administrative law judge may not grant a request to retract a withdrawal unless the request establishes good cause for the retraction and is received within 21 days after the withdrawal decision was mailed to the appellant.
In this case, the employee's request centers on the overpayment requirement. A review of the employee's initial hearing with ALJ Rakowski, reflects that the ALJ inaccurately advised him that the overpayment was not an issue before him. In fact, the ALJ had the responsibility to address the overpayment if his decision on the separation was such that an overpayment arose. Specifically, if there was ineligibility, an ALJ should address the ineligibility period, whether the employee was erroneously paid benefits in those weeks to which he was not entitled, whether the waiver provisions apply and the amount he was to repay, if any. The commission finds that this inaccurate information establishes good cause to retract the withdrawal. Alternatively, the ALJ's incorrect advice would also constitute a mistake sufficient for the commission to set aside the withdrawal decision.
The commission therefore finds that:
(1) ALJ Peters did not have jurisdiction to issue the April 5, 2011 decision within the meaning of Wis. Stat. § 108.09(4) and pursuant to Wis. Stat. § 108.09(6), that decision should be set aside.
(2) ALJ Rakowski did not have jurisdiction to issue the March 10, 2011 set aside decision within the meaning of Wis. Stat. § 108.09(4) and pursuant to Wis. Stat. § 108.09(6), that decision should be set aside.
(3) The employee established that his request to retract his withdrawal established good cause and the withdrawal was due to mistake; as such, either as a review of the withdrawal decision Wis. Stat. § 108.09 (6)(a) or pursuant to Wis. Stat. § 108.09 (6)(c), the commission sets aside the withdrawal decision pursuant to Wis. Stat. § 108.09 (6)(d) and remands the matter for a new hearing on the merits.
The appeal tribunal decision dated April 5, 2011 is set aside, as is the March 10, 2011 set aside and the withdrawal decision dated April 8, 2010. The employee's request for hearing is reinstated and a hearing will be scheduled as soon as possible.
Dated and mailed July 22, 2011
garneca2 : 150 : 1 PC 718 : PC 713 : PC 749
BY THE COMMISSION:
/s/ Robert Glaser, Chairperson
/s/ Ann L. Crump, Commissioner
/s/ Laurie R. McCallum, Commissioner
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uploaded 2011/09/13