JANA D KARANDJEFF, Employee

COMMUNITY LIVING ALLIANCE 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 makes the following:

The employee worked for over two years as a personal care worker for the employer, an in-home care provider for disabled individuals and the elderly. She began working for the employer on August 20, 2008 (week 34). Her last day of work was October 30, 2010 (week 44).

The employee worked part-time for the employer, about 17.5 hours per week. She worked as a personal care worker for her adult son, who has Down syndrome. The employee earned $10.25 per hour for weekday work, $10.55 per hour for weekend work, and $15.00 per hour for work performed on holidays. The employee was referred to the employer by a social worker assigned to work with the family to attend to the employee's son's special needs. The employee completed the employer's employment application, attended a new employee orientation session, and received a handbook. The employee submitted weekly time sheets to the employer and was paid bi-weekly. In addition, the employee receives, or has received in the past, family support benefits and respite pay. Her son receives Supplemental Security Income benefits.

The employee initiated a claim for unemployment benefits on October 28, 2008 (week 44), after being discharged on October 23 by the dental clinic in which she had worked as a hygienist for 12 years. The employee did not perform any work for the dental clinic in week 44 of 2008. The employee was paid for her final work hours, her unused sick leave, and her unused vacation by direct deposit on November 6, 2008 (week 45). The amount paid to the employee was $3,693.94.

When the employee opened her claim, she was asked if she also worked for the employer. The employee responded in the affirmative. There was no further discussion about the employee's employment with the in-home care provider or instructions regarding filing her weekly claim certifications or reporting her work performed and wages earned.

The employee received unemployment benefits in weeks 44 of 2008 through 37 of 2009, with the exception of week 15 of 2009. She did not report on her weekly claim certifications the monies she received from the employer or the final payroll deposit she received from the dental clinic. The employee stopped claiming benefits in week 38 of 2009 when she began a full-time job as a child care worker in a day care center.

The employee filed her weekly unemployment claims via the internet. The first screen on the internet for filing weekly claim certifications provides, in pertinent part:

The law provides penalties for false statements;

You must report all work, all hours worked, and all wages earned, regardless of the amount. Failure to do this may result in overpayment of benefits and penalties, including prosecution.

The employee did not report to the department her hours worked or her wages earned from the employer and the dental clinic for the weeks at issue.

The employee has earned an associate's degree. She is able to read. She received a copy of the "Handbook for Claimants" after she opened her unemployment insurance claim. She read it. She did not contact the department with any questions regarding filing weekly claim certifications.

Wisconsin Stat. § 108.04 (11)(b) provides that, if a claimant, in filing a claim for any week, conceals any of her wages earned in or paid or payable for that week, the claimant is ineligible for benefits.

The employee explained that she did not realize that she needed to report the personal care services she provided to her son as work performed. She did not think of it as "work" in the traditional or unemployment sense. The employee also did not consider the monies she received to be "wages." When filing her weekly claims, the employee interpreted the question, "Did you work?", as asking whether she worked outside the home. The employee had been performing the same personal care services for her son every day for 23 years. She had been referred to the employer by a social worker assigned to the family. Because her son is disabled, the employee has received other monies from various sources and for various reasons (e.g., family support benefits, respite payments, and SSI). As soon as the employee began working outside the home, she stopped filing for unemployment benefits.

The issue before the commission is whether the employee concealed from the department wages earned in or payable in weeks 44 of 2008 through 37 of 2009.

Concealment requires an intent or design by the claimant to receive benefits to which the claimant knows he or she is not entitled. See, Nestor Gutierrez, UI Dec. Hearing No. 00005766MD (LIRC July 19, 2002); In re Abel M. Rodriguez, UI Dec. Hearing No. 99600259MW (LIRC April 22, 1999); In re Kevin T. Willingham, UI Dec. Hearing No. 91609604MW (LIRC June 5, 1992). Concealment consists of suppression of a fact and implies a purpose or design. Kamuchey v. Trzesniewski, 8 Wis. 2d 94, 99, 98 N.W.2d 403 (1959), citing 23 Am Jur., Fraud and Deceit, p. 851, sec. 77. In order to find concealment, there must be the intent to receive benefits to which the claimant knows he or she is not entitled. Concealment will not be found in cases where a claimant makes an honest mistake and errs in reporting material facts to the department due to ignorance or lack of knowledge. Brenda R. Mortensen, UI Dec. Hearing No. 05002751JV (LIRC Dec. 14, 2005).

The commission concludes that the intent to receive benefits to which the employee knew she was not entitled is absent in this case. When asked by the department if she "worked" for the employer, the employee always reported yes. She never hid that fact from the department. At the very beginning of her claims filing, however, the employee formed the erroneous belief that the care she provided for her son was not "work" in the traditional or unemployment sense and that the monies she received for providing that care were not "wages." She interpreted the question "Did you work?" as asking whether she worked outside the home.

Because the employee did not leave her home and had been providing the same personal care services on a daily basis for 23 hears, it was not unreasonable for her to believe that she was not "working" in the same way she "worked" for the dental clinic or, later, the day care center. The employee received other monies from various sources and for various reasons because her son is disabled. As soon as the employee began working outside the home, she stopped claiming unemployment benefits. There was no intent on the employee's part to receive benefits to which she was not entitled.

The statutes provide that, if a claimant earns wages in a week for which benefits are otherwise payable and are claimed, the first $30 of those wages shall be disregarded, and the benefits otherwise payable shall be reduced by 67 percent of the remaining wage amount. If the remainder is less than $5, no benefits are payable.(1)

Although the ALJ did not make factual findings regarding the wages earned by the employee in the weeks at issue, the amounts were set forth in Weekly Earnings Audits completed by the employee's employers and admitted into evidence. The amounts reported by the employers were not disputed by the employee.

The weekly benefits for which the employee is eligible in the weeks at issue and the overpayments made by the department to the employee during these weeks are as follows:

Week of issue	Benefits paid	Wages earned	Benefits due	Overpayment
44 of 2008	$355*	$180.88	$253	$102
45	$355	$3,874.82	$0	$355
46	$355	$180.88	$253	$102
47	$355	$180.88	$253	$102
48	$355	$206.53	$236	$119
49	$355	$180.88	$253	$102
50	$355	$180.88	$253	$102
51	$355	$180.88	$253	$102
52	$355	$121.94	$293	$  62
1 of 2009	$355	$206.53	$236	$119
2	$363**	$180.88	$261	$102
3	$363	$180.88	$261	$102
4	$363	$193.70	$253	$110
5	$363	$180.88	$261	$102
6	$363	$180.88	$261	$102
7	$363	$180.88	$261	$102
8	$363	$180.88	$261	$102
9	$363	$180.88	$261	$102
10	$363	$180.88	$261	$102
11	$363	$191.13	$255	$108
12	$363	$180.88	$261	$102
13	$363	$180.88	$261	$102
14	$363	$187.18	$257	$106
15	$363	$0	$363	$ 0
16	$363	$187.18	$257	$106
17	$363	$187.18	$257	$106
18	$363	$187.18	$257	$106
19	$363	$187.18	$257	$106
20	$363	$187.18	$257	$106
21	$363	$187.18	$257	$106
22	$363	$187.18	$257	$106
23	$363	$187.18	$257	$106
24	$363	$187.18	$257	$106
25	$363	$187.18	$257	$106
26	$363	$187.18	$257	$106
27	$363	$197.40	$250	$113
28	$363	$187.18	$257	$106
29	$363	$187.18	$  31***	$332
OP reg benefits	$13,714		$9,386	$4,328
30	$323****	$187.18	$257	$  66
31	$363	$187.18	$257	$106
32	$363	$187.18	$257	$106
33	$363	$187.18	$257	$106
34	$363	$187.18	$257	$106
35	$363	$187.18	$257	$106
36	$363	$187.18	$257	$106
37	$363	$198.15	$250	$113
OP EUC benefits	$2,864		$2,049	$815

* The weekly benefit rate in weeks 44 of 2008 through 1 of 2009 was $355.
** Beginning in week 2 of 2009, the weekly benefit rate increased to $363.
*** Regular benefits were exhausted in week 29 of 2009 with the $31 payment.
**** Emergency Unemployment Compensation (EUC) was paid beginning in week 30 of 2009.

The commission therefore finds that in weeks 44 of 2008 through 14 of 2009 and in weeks 16 through 37 of 2009 the employee worked and earned wages, but she did not conceal from the department the work performed and the wages paid for those weeks, within the meaning of Wis. Stat. § 108.04(11).

The commission further finds that the employee was overpaid regular benefits in weeks 44 of 2008 through 14 of 2009 and in weeks 16 through 29 of 2009 in the amount of $4,328, within the meaning of Wis. Stat. § 108.03(1), because she was not eligible for, nor entitled to, those benefits, given the part-time wages she had earned in those weeks.

The commission further finds that the employee was overpaid emergency unemployment compensation for weeks 30 through 37 of 2009 in the amount of $815, within the meaning of Wis. Stat. § 108.03(1), because she was not eligible for, nor entitled to, those benefits, given the part-time wages she had earned in those weeks.

The commission further finds that the employee's failure to report her work and wages from the employer on her weekly claim certifications between week 44 of 2008 and week 37 of 2009, while not fraudulent, prevents waiver of repayment of the overpaid benefits, under Wis. Stat. § 108.22(8)(c).

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits calculated under the partial benefits formula for weeks 44 of 2008 through 37 of 2009. The employee is required to repay the sum of $5,143 ($4,328 + $815) to the Unemployment Reserve Fund.

Dated and mailed June 20, 2012

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

The commission did not consult with the administrative law judge before reversing her decision because its reversal was not based upon a differing view as to the credibility of witnesses. The commission's reversal is based upon a differing conclusion as to what the hearing record in fact established and upon a differing interpretation of the relevant law.

Although the administrative law judge was unnecessarily argumentative during the hearing in this matter and refused at times to admit evidence having reasonable probative value, in view of the conclusions and result reached by the commission remand is not required.

 
karanja . urr : 152 : 5

cc: Attorney JoAnn Hart

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(1)( Back ) Wis. Stat. 108.04(11)(b) provides that a claimant who conceals wages earned for a benefit week claimed shall be denied benefits for that week. In the absence of concealment, a recalculation of benefits payable is made using the wages earned by the employee and applying the partial benefits formula as set forth in Wis. Stat 108.05(3)(a).