MARTA J QUINN, Employee

PROFESSIONAL POWDER COATINGS INC, Employer

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.

The decision of the administrative law judge is affirmed. Accordingly, the employee's base period wages shall be limited to a maximum of ten times the weekly benefit rate based solely on employment by this employer.

Dated and Mailed August 12, 2011

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

Based upon the record before it, the commission can only affirm the appeal tribunal decision in this matter. The employee indicated, on a Family Corporation Questionnaire she filled out on September 2, 2010, that her husband owned sixty percent of the corporation she worked for. At hearing, the employee testified that, while those percentages might have been correct as of the time she filled out the form, it was her understanding that previously her husband was not a fifty percent (or more) owner of the corporation. The employee had no documentary evidence supporting this assertion, however. As the appeal tribunal reasoned, this simply is too vague to allow the commission to find that the employee's husband was not at least a fifty percent owner in the corporation (what the employee originally indicated).

The employee's attorney indicates that she is preserving the employee's appeal rights until they can verify from tax returns (to be obtained in the divorce litigation) that the husband's assertion that he owns sixty percent of the corporation is false. The employee's attorney made that assertion in April, however, and it is now August. Rather than holding the case open indefinitely, the commission issues it on the basis of the evidence it has. The commission notes, though, that by operation of Wis. Stat. § 108.09(6)(c) the commission has the authority to revisit a decision within two years from the date of the decision, on the grounds of mistake or newly discovered evidence. The documents the employee's attorney indicates she is seeking, would constitute newly discovered evidence, and the commission sees no reason why any such documents would not be obtainable in two years' time.

quinnma : 105 : 7

cc: ATTORNEY CYNTHIA FIENE

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uploaded 2011/09/13