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

CHAD J HARNACK, Employee

FLINT SPECIAL SERVICES, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 11004475MD


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 extended training benefits as of week 28 of 2011. He is required to repay the sum of $1,805.00 to the Unemployment Reserve Fund.

Dated and mailed February 3, 2012

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

MEMORANDUM OPINION

The employee petitioned for commission review of the adverse appeal tribunal decision. The employee argues that he should not be held responsible for repaying extended training benefits he received in error. The commission disagrees.

The employee initiated a claim for unemployment benefits in July 2007 after being laid off by the employer. He received regular unemployment insurance (UI) benefits sporadically in 2007 and 2008. The last wages reported by the employee were in the fourth quarter of 2008. The employee received regular UI, emergency unemployment compensation (EUC), and extended benefits (EB) in 2009, 2010, and 2011. The employee's most recent benefit year ended in week 27 of 2010. The employee exhausted his eligibility for regular, EUC, and EB benefits in week 18 of 2011, the week ending April 30, 2011.

The only benefits potentially available to the employee beginning in week 19 of 2011 were extended training benefits under Wis. Stat. § 108.06(7). To be eligible for extended training benefits, a claimant must have exhausted all rights to benefits under other programs; be otherwise eligible for benefits; be currently enrolled in approved training (as defined in Wis. Stat. § 108.04(16)); and, if not in a current benefit year, have a benefit year that ended no earlier than 52 weeks prior to the week for which the claimant first claimed extended training benefits.

In a determination dated May 23, 2011, the employee was notified that he met all of the eligibility requirements for extended training benefits as of week 19 of 2011. Accordingly, the employee was paid extended training benefits for weeks 19 through 32 of 2011, the week ending August 6, 2011.

However, in legislation that became effective on August 5, 2011, the Wisconsin legislature allowed extended benefits to be paid retroactively to individuals who qualified for such benefits. Extended benefits (EB) are a type of UI benefits that may only be paid when a state is in a period of high unemployment and certain economic conditions are present. Federal law establishes which economic conditions will trigger the beginning and end of an EB period. Changes in federal law in 2011 allowed each state to modify its laws to make unemployed workers eligible for an additional 13 weeks of EB. Wisconsin's EB period had originally ended on April 16, 2011. The modifications to Wisconsin's law concerning EB applied retroactively with respect to weeks of unemployment beginning on or after December 17, 2010.

The claimant had been paid extended training benefits of $361 per week for weeks 19 through 32 of 2011. Extended training benefits may only be paid to a claimant who has exhausted all rights to benefits under other programs. After the Wisconsin legislature made EB payable retroactively, the department was required to change, and did change, the funding source for payments made to the employee for weeks 19 through 27 of 2011 from extended training benefits to EB. So, contrary to the assertion in the employee's petition, the department did use the employee's eligibility for retroactive EB to reimburse the extended training benefits program. However, the employee's benefits under the EB program were exhausted in week 27 of 2011, and he had received benefits through week 32 of 2011.

Again, the only benefits potentially available to the employee beginning in week 28 of 2011 were extended training benefits. Unfortunately, as of that week, the employee did not meet all of the eligibility requirements because more than 52 weeks had passed since the end of the employee's applicable benefit year.

As a result, the extended training benefits that the employee received for weeks 28 through 32 of 2011, totaling $1,805, were overpaid. He was not eligible for, nor entitled to, those benefits.

Wisconsin Stat. § 108.22(8)(c) provides that the department shall waive an overpayment if the overpayment was the result of departmental error and the overpayment did not result from the fault of the claimant. Departmental error is defined in Wis. Stat. § 108.02(10e)(a) and (b) as an error made by the department in computing or paying benefits which results from a mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, by commission or omission, or from misinformation provided to a claimant by the department, on which the claimant relied.

Here, the employee is correct in stating that the overpayment did not result from any fault on his part. Yet, the overpayment also did not result from the fault of the department. The overpayment was caused by the passage of legislation that made EB payable retroactively. The department is required to follow state and federal law governing the sequence in which benefits from different unemployment insurance programs are paid, even if a claimant would be better off financially if benefits were paid in a different order.

The commission is not unsympathetic to the employee's situation. Nevertheless, the language of the statutes, as it has been created by the legislature, requires the result reached. While such language results in a decision adverse to the employee, this reflects the legislature's intent. Accordingly, the commission may not reverse the appeal tribunal decision to allow a waiver the overpayment.

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will withhold benefits due for future weeks of unemployment in order to offset overpayment of UI and other special benefit programs that are due to this state, another state, or to the federal government.

Contact the Unemployment Insurance Division, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the overpayment.

 

harnach . usd : 152 : 1



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