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

MOLLIE A TOONEN, Employee

APPETIZE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 11400273AP


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:

1. Delete the 5th, 11th, 12th, 13th, and 15th paragraphs under the ALJ's FINDINGS OF FACT and CONCLUSIONS OF LAW.

2. In the 16th paragraph under the ALJ's FINDINGS OF FACT and CONCLUSIONS OF LAW place a period after the first "statutes" and delete the remainder of that paragraph.

3. Delete the last two sentences of the ALJ's DECISION paragraph.

DECISION

The decision of the administrative law judge is modified to conform to the above findings and, as modified, is affirmed in part and remanded in part. Accordingly, the employee is ineligible for benefits beginning in week 52 of 2010, and until seven weeks have elapsed since the end of the week of discharge and the employee has earned wages in covered employment performed after the week of discharge equaling at least 14 times the employee's weekly benefit rate which would have been paid had the discharge not occurred. The initial Benefit Computation (Form UCB-700), issued on December 27, 2010 is set aside. If benefit payments become payable based on other employment, a new computation will be issued as to those benefit rights. This matter is remanded for a hearing and decision on whether benefits were erroneously paid due to employer fault, employee fault or departmental error and whether, as a result, the employer's account remains charged for those benefits.

Dated and mailed September 8, 2011
toonemo . usd : 132 : 1

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

MEMORANDUM OPINION

The employer has petitioned for commission review of the adverse appeal tribunal decision which found that the employer's account would remain charged for erroneously paid benefits because it failed, without good cause, to respond to the department's request for information.

The employer asserts in its petition that it did timely return the discharge questionnaire. It is correct. The questionnaire was sent on December 27, 2010, and was due within 7 days of being sent. The employer faxed the completed questionnaire to the department on December 28, 2010.

The ALJ's finding of employer fault is based on its alleged failure to respond to a message left with the employer by a department representative asking for additional information. The ALJ, in questioning the employer on the failure to provide information, stated that it was her "understanding" that the adjudicator contacted the employer on January 4, 2011, and left a message asking for additional information. Digital Recording. at 36:53. The employer's witness indicated that he was not given any message from the department.

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 ALJ did not mark as an exhibit, or admit into the record, any documentation to establish that the department requested additional information from the employer. The record does not indicate that the ALJ gave the employer an opportunity to review any documentation upon which she was basing her understanding that the department contacted the employer for additional information. The record is insufficient to find that the department asked the employer to provide additional information, let alone sufficient to find that the employer failed to provide that information. The commission therefore remands the overpayment and charging issues back to the department for a hearing and decision.


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