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

TYLER J JONET, Claimant

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 11404666AP


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 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 second, third, fourth, and fifth full paragraphs on page five of the appeal tribunal decision.

2. Delete the first full paragraph on page six of the appeal tribunal decision.

3. Delete the last three sentences of the DECISION paragraph on page six of the appeal tribunal decision.

4. Delete the NOTE which appears on pages six and seven of the appeal tribunal decision.

DECISION and ORDER

The decision of the administrative law judge, as modified, is affirmed. Accordingly, as of week 41 of 2009, the claimant does not meet the definition of "exhaustee" for purposes of entitlement to EUC08 benefits. This matter is remanded to the department for a hearing and decision on the issue of the overpayment of benefits.

Dated and mailed March 30, 2012

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner


MEMORANDUM OPINION

The commission remands this matter because one of the issues for hearing was whether the claimant was overpaid emergency unemployment compensation (EUC08) to which he was not entitled and, if so, whether those benefits must be repaid. The hearing was conducted by telephone. The only documents sent to the claimant in advance of the hearing were a copy of the department's initial determination and a copy of the claimant's online appeal. The claimant requested a hearing because he did not understand the determination or how the department arrived at the overpayment amount.

At the hearing in this matter, the department's witness testified as to the claimant's claim and payment histories based on what she could see on screens when accessing the department's mainframe computer. Neither the ALJ nor the claimant had before him copies of these screens or any other documents referred to by the witness. The ALJ asked the witness to put together for him documents that would track what happened, where the overpayment came from, and whether there was any fault on the part of the department or claimant. The ALJ also asked for a written synopsis and stated that he would hold the record open for information from the witness.

As requested, the department's witness sent the ALJ a synopsis of the claimant's benefits claims from 2008 through week 16 of 2011, a summary of how his overpayment amounts were calculated, and three sets of payment histories. The ALJ sent the documents, after marking them as exhibits, to the claimant for his review, along with a cover letter and a list of definitions for frequently used abbreviations. The claimant submitted a written objection, stating that he still did not understand where the sum of monies for the years in question came from. The claimant found the paperwork very confusing and difficult to understand.

The ALJ issued an appeal tribunal decision without further hearing, affirming the department's initial determination. In a footnote, the ALJ overruled the claimant's objection to the marked exhibits, finding that the contents of the payment histories were "sufficiently explained in detail and sufficient (sic) summarized by Hearing Exhibit #2, which was received into evidence without objection by the claimant." The claimant had specifically objected to Exhibit #3, the payment histories. Exhibit #2 is the department witness' written summary of the claimant's history and overpayment calculations.

The commission finds that, because of the way the evidence in this matter came into the record, the claimant was improperly denied an opportunity to ask questions of the department's witness and to seek clarification of the information the department relied upon in calculating the amount the claimant is said to have been overpaid. The commission remands this matter to give the department the opportunity to provide a thorough explanation of how its overpayment figures were calculated and to give the claimant the opportunity to ask questions concerning the same.



jonetty2 . umd : 152 : 5


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