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

MIKHAIL L VASERMAN, Claimant

UNEMPLOYMENT INSURANCE DECISION
Hearing Nos. 12603185MW & 12603628MW'

PROCEDURAL HISTORY

On February 24, 2012, determination number 120130674 was issued; it held that for weeks 51 of 2011 through week 3 of 2012, the claimant was incorrectly paid Emergency Unemployment Compensation (EUC) at a rate of $335.00 (1) per week when he should have been paid benefits at the rate of $189.00 (2) per week. The determination waived repayment of the overpaid benefits.

On March 28, 2012, determination number 120212954 was issued; it held that as of week 51 of 2011, the claimant was not an exhaustee and was not eligible to establish EUC benefits on the benefit year ending July 9, 2011 because he had not exhausted all EUC benefits payable on the benefit year ending May 16, 2009. The effect was that the claimant was not eligible for EUC.

On April 3, 2012, determination number 120231134 was issued; it set aside the March 28, 2012 determination, indicating that the March 28, 2012 determination was issued in error. The April 3, 2012 determination held that he claimant was an exhaustee and was eligible for EUC.

The claimant requested a hearing on both active determinations. On May 2, 2012, hearings were held; hearing no. 12603628MW was assigned the exhaustee determination while hearing no. 12603185MW was assigned the issues of whether the claimant had good cause for failing to appear at an earlier hearing on Thursday, March 22, 2012 and, then, provisionally, the merits of the determination.

On May 2, 2012, Administrative Law Judge Stark elicited testimony from the claimant and a department witness. After announcing that the hearing was closed,(3) the ALJ issued two decisions indicating that the claimant had withdrawn his requests for the hearings by his actions.

The claimant petitioned the commission for review of the withdrawal appeal tribunal decisions. On September 7, 2012, the commission issued an order for both hearing numbers, setting aside the withdrawal decisions pursuant to Wis. Stat. § § 108.09(6)(a) and (c) and ordered the taking of evidence on the merits of both appeals pursuant to Wis. Stat. § 108.09(6)(d).

The remand hearings were conducted by ALJ Korinek on October 22, 2012. After the hearings were closed, the records were returned to the commission for decision.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to ALJ Korinek. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The claimant initiated a claim for unemployment insurance benefits on May 18, 2008. He has been filing for and receiving benefits intermittently since that time. For his claim in week 51 of 2011, the claimant argued that should be receiving Emergency Unemployment Compensation (EUC) based upon a weekly benefit rate of $335.00 not a rate of $189.00.

Thus, the issues are:

(1) For hearing no. 12603628MW, whether the claimant was an "exhaustee" as of week 51 of 2011; and, if the claimant was an "exhaustee" whether the claimant had any "carryover" emergency benefits available to him from a prior benefit year and, if the claimant has multiple benefit years, which one should be used to determine the weekly benefit rate of his EUC payments, and

(2) For hearing no. 12603185MW, whether the amounts paid to the claimant in weeks 51 of 2011 through 3 of 2012 were correct and if not, whether an overpayment exists and whether repayment should be waived.

In order for the commission to determine which benefit rate was proper as of week 51 of 2011, the commission must trace the claimant's payment history prior to June 20, 2008, when the President signed the Supplemental Appropriations Act of 2008 (P.L. 110-252) into law. Title IV of this act created the new temporary program extending the payment of unemployment benefits in response to the economic slowdown. This EUC program was amended/extended several times, leading to the week 51 of 2011 week of issue.

As mentioned, on May 18, 2008, the claimant initiated a claim for unemployment insurance (UI) benefits. A May 23, 2008 monetary computation (monetary), based upon wages in his base period, reflects that he was entitled to maximum "regular" UI benefits totaling $4,914.00 to be paid during the 2008 Benefit year, week 21 of 2008 to week 20 of 2009, at a weekly benefit rate (WBR) of $189.00.

The claimant filed for and received regular UI benefits for this claim as follows:

Week Ending

UI Week

Amount Paid

Total Paid

May 24, 2008

21

$189.00

$189.00

June 28, 2008

26

$189.00

$378.00

July 5, 2008

27

$189.00

$567.00

July 12, 2008

28

$189.00

$756.00

July 19, 2008

29

$189.00

$945.00

July 26, 2008

30

$189.00

$1,134.00

August 2, 2008

31

$189.00

$1,323.00

August 9, 2008

32

$189.00

$1,512.00

August 16, 2008

33

$189.00

$1,701.00

August 23, 2008

34

$189.00

$1,890.00

August 30, 2008

35

$189.00

$2,079.00

September 6, 2008

36

$189.00

$2,268.00

September 13, 2008

37

$189.00

$2,457.00

September 20, 2008

38

$189.00

$2,646.00

September 27, 2008

39

$189.00

$2,835.00

October 4, 2008

40

$189.00

$3,024.00

October 11, 2008

41

$189.00

$3,213.00

October 18, 2008

42

$189.00

$3,402.00

October 25, 2008

43

$189.00

$3,591.00

November 1, 2008

44

$189.00

$3,780.00

November 8, 2008

45

$189.00

$3,969.00

November 15, 2008

46

$189.00

$4,158.00

November 22, 2008

47

$189.00

$4,347.00

November 29, 2008

48

$189.00

$4,536.00

December 6, 2008

49

$189.00

$4,725.00

December 13, 2008

50

$189.00

$4,914.00

As of week 50, the claimant exhausted this regular unemployment benefit claim for the monetary dated May 23, 2008, the 2008 Benefit year.

When the claimant filed a continued claim for benefits in week 51, the calendar week ending December 20, 2008, Title IV of the Supplemental Appropriations Act of 2008 (SAA), Pub. L. No. 110-252, H.R. 2642, § 4001(d)(2), provided for payment of Emergency Unemployment Compensation (EUC). § 4001(b) "PROVISIONS OF AGREEMENT," in defining and "exhaustee" for EUC purposes, provides that:

. . . the State will make payments of emergency unemployment compensation to individuals who -

(1) have exhausted all rights to regular compensation under the State law or Federal law with respect to a benefit year (excluding any benefit year that ended before May 1, 2007);
(2) have no rights to regular compensation or extended compensation with respect to a week under such law or any other State unemployment compensation law or to compensation under any other Federal law (except as provided under subsection (e)); and
(3) are not receiving compensation with respect to such week under the unemployment compensation law of Canada.

The original EUC (4) maximum benefit amount (MBA) equaled the lesser of 13 times the most recent weekly benefit rate on the claim on which EUC is based or 50% of regular UI MBA on that claim. See Title IV of the Supplemental Appropriations Act of 2008 (SAA), Pub. L. No. 110-252, H.R. 2642, § 4002(b)(1)(a).

For weeks 51 of 2008 through 20 of 2009, the claimant was paid these benefits; these benefits were referred to as EUC Tier 1 (after later Tiers were added).

Week Ending

UI Week

Amount Paid

Total Paid

December 20, 2008

51

$189.00

$189.00

December 27, 2008

52

$189.00

$378.00

January 3, 2009

1

$189.00

$567.00

January 10, 2009

2

$189.00

$756.00

January 17, 2009

3

$189.00

$945.00

January 24, 2009

4

$189.00

$1,134.00

January 31, 2009

5

$189.00

$1,323.00

February 7, 2009

6

$189.00

$1,512.00

February 14, 2009

7

$189.00

$1,701.00

February 21, 2009

8

$189.00

$1,890.00

February 28, 2009

9

$189.00

$2,079.00

March 7, 2009

10

$189.00

$2,268.00

March 14, 2009

11

$189.00

$2,457.00

The Unemployment Compensation Extension Act, Pub. L. No. 110-449, enacted November 21, 2008, increased the MBA available under EUC Tier 1 to the lesser of 20 times the most recent weekly benefit rate on the claim on which EUC is based or 80% of regular UI MBA on that claim. This "Additional First-Tier" benefit extension allowed the claimant to receive an additional seven weeks of EUC (the EUC Tier 1 Extension). The claimant filed for benefits and was paid under this extension as follows:

Week Ending

UI Week

Amount Paid

Total Paid

March 21, 2009

12

$189.00

$189.00

March 28, 2009

13

$189.00

$378.00

April 4, 2009

14

$189.00

$567.00

April 11, 2009

15

$189.00

$756.00

April 18, 2009

16

$189.00

$945.00

April  25, 2009

17

$189.00

$1,134.00

May 2, 2009

18

$189.00

$1,323.00

After exhausting the extended Tier 1 benefits available, the claimant continued to file for unemployment insurance benefits.

The Unemployment Compensation Extension Act, Pub. L. No. 110-449, also provided for "Second-Tier Benefits." Specifically, the Unemployment Compensation Extension Act, Pub. L. No. 110-449, H.R. 6768, § 4002(c) allowed for a second Tier extension equivalent to the MBA equaling the lesser of 13 times the most recent weekly benefit rate on the claim on which EUC is based or 50% of regular UI MBA on that claim. This was called EUC Tier 2. For the claimant, his EUC Tier 2 amount for the 2008 Benefit year totaled $2,457.00. (5)

For weeks 19 and 20 of 2009, the claimant filed for and received EUC Tier 2 as follows:

Week Ending

UI Week

Amount Paid

Total Paid

May 9, 2009

19

$189.00

$189.00

May 16, 2009

20

$189.00

$378.00

After the week 20 of 2009 payment, the claimant had $2,079.00 in EUC Tier 2 benefits remaining based upon the 2008 Benefit year. The claimant did not file for or receive benefits in weeks 21 through 29 of 2009.

In week 30 of 2009, the claimant resumed claiming benefits. In weeks 30 through 40 of 2009, the claimant received EUC Tier 2 payments as follows:

Week Ending

UI Week

Amount Paid

Total Paid

July 25, 2009

30

$189.00

$567.00

August 1, 2009

31

$189.00

$756.00

August 8, 2009

32

$189.00

$945.00

August 15, 2009

33

$189.00

$1,134.00

August 22, 2009

34

$189.00

$1,323.00

August 29, 2009

35

$189.00

$1,512.00

September 5, 2009

36

$189.00

$1,701.00

September 12, 2009

37

$189.00

$1,890.00

September 19, 2009

38

$189.00

$2,079.00

September 26, 2009

39

$189.00

$2,268.00

October 3, 2009

40

$189.00

$2,457.00

As of week 40 of 2009, the claimant had no further the benefits available at that time under EUC Tier 2 for his 2008 Benefit year.

The claimant filed a claim for benefits in week 41 of 2009. As no additional EUC benefits were available at the time and, given the high unemployment rate, extended benefits (EB) were available to the claimant pursuant to The Federal-State Extended Unemployment Compensation Act of 1970, 26 U.S.C. 3304(a)(11) see note and Wis. Stat. 108.141. (6) He received a week of extended benefits (EB) as follows:

Week Ending

UI Week

Amount Paid

Total Paid

October 10, 2009

41

$189.00

$189.00

The claimant ceased filing for benefits after week 41 of 2009.

On December 19, 2009, The Department of Defense Appropriations Act, Public Law 111-118, was enacted. This increased funding of EUC, creating:

an additional EUC Tier 2 week,
an additional EUC Tier 3 extension, equivalent to a MBA equaling the lesser of 13 times the most recent weekly benefit rate on the claim on which EUC is based or 50% of regular UI MBA on that claim,
a EUC Tier 4 extension, consisting of extension equivalent to the MBA equaling the lesser of 6 times the most recent weekly benefit rate on the claim on which EUC is based or 24% of regular UI MBA on that claim, and
EUC Tiers 3 and 4 were only in place if a State "triggered" on to these benefits with a certain high unemployment rate. (7)

It is important to note that the Worker, Homeownership, and Business Assistance Act of 2009 (Worker Assistance Act), Public Law 111-92, enacted on November 6, 2009, provided, in material part:

SEC. 5. COORDINATION.

Section 4002 of the Supplemental Appropriations Act, 2008 (Public Law 110-252; 26 U.S.C. 3304 note), as amended by section 4, is amended by adding at the end the following new subsection:

(f) COORDINATION RULES.-

(1) COORDINATION WITH EXTENDED COMPENSATION - Notwithstanding an election under section 4001(e) by a State to provide for the payment of emergency unemployment compensation prior to extended compensation, such State may pay extended compensation to an otherwise eligible individual prior to any emergency unemployment compensation under subsection (c), (d) or (e)(by reason of the amendments made by sections 2, 3, and 4 of the Worker, Homeownership, and Business Assistance Act of 2009), if such individual claimed extended compensation for at least one week of unemployment after such exhaustion of emergency unemployment compensation under subsection (b)(as such subsection was in effect on the day before the date of the enactment of this subsection).

(2) COORDINATION WITH TIERS II, III, AND IV. - If a State determines that implementation of the increased entitlement to second-tier emergency unemployment compensation by reason of the amendments made by section 2 of the Worker, Homeownership, and Business Assistance Act of 2009 would unduly delay the prompt payment of compensation under this title by reason of the amendments made by such Act, such State may elect to pay third-tier emergency unemployment compensation prior to the payment of such increased second-tier emergency unemployment compensation until such time as such State determines that such increased second-tier emergency unemployment compensation may be paid without such undue delay. If a State makes the election under the preceding sentence, then, for purposes of determining whether an account may be augmented for fourth-tier emergency unemployment compensation under subsection (e), such State shall treat the date of exhaustion of such increased second-tier emergency unemployment compensation as the date of exhaustion of third-tier emergency compensation, if such date is later than the date of exhaustion of the third-tier emergency compensation.

The claimant filed a new claim for unemployment insurance benefits on July 13, 2010. He was disqualified from eligibility initially based upon the nature of his most recent separation of employment but had sufficient base period wages to establish a regular unemployment insurance benefit year with his base period wages. His monetary was established August 2, 2010 for his 2010 Benefit year, with a weekly benefit rate of $335.00 with maximum regular unemployment insurance benefits available of $6,275.00.

As of the calendar week ending October 2, 2010 (week 40), the claimant requalified for benefits and began receiving partial regular unemployment insurance benefits, based upon the 2010 Benefit year, as follows:

Week Ending

UI Week

Amount Paid

Total Paid

October 2, 2010

40

$221.00

$221.00

October 9, 2010

41

$221.00

$442.00

October 16, 2010

42

$221.00

$663.00

October 23, 2010

43

$221.00

$884.00

October 30, 2010

44

$221.00

$1,105.00

November 6, 2010

45

$221.00

$1,326.00

November 13, 2010

46

$221.00

$1,547.00

November 20, 2010

47

$221.00

$1,768.00

November 27, 2010

48

$221.00

$1,989.00

December 4, 2010

49

$221.00

$2,210.00

December 11, 2010

50

$221.00

$2,431.00

December 18, 2010

51

$221.00

$2,652.00

December 25, 2010

52

$221.00

$2,873.00

January 1, 2011

1

$221.00

$3,094.00

January 8, 2011

2

$221.00

$3,315.00

January 15, 2011

3

$221.00

$3,536.00

January 22, 2011

4

$221.00

$3,757.00

January 29, 2011

5

$221.00

$3,978.00

February 5, 2011

6

$221.00

$4,199.00

February 12, 2011

7

$221.00

$4,420.00

February 19, 2011

8

$221.00

$4,641.00

February 26, 2011

9

$221.00

$4,862.00

March 5, 2011

10

$221.00

$5,083.00

March 12, 2011

11

$221.00

$5,304.00

March 19, 2011

12

$221.00

$5,525.00

March 26, 2011

13

$221.00

$5,746.00

April 2, 2011

14

$221.00

$5,967.00

April 9, 2011

15

$221.00

$6,188.00

April 16, 2011

16

$87.00

$6,275.00

As of week 16 of 2011, the claimant used up the regular unemployment insurance benefits available for the 2010 Benefit year claim.

Thereafter, the claimant continued to claim unemployment benefits. As of week 17 of 2011, the department found the claimant an exhaustee who had carryover EUC benefits available in Tier 2 (consisting of one week) (8) and in Tier 3, from the 2008 Benefit year, with a $189.00 weekly benefit rate. (9) The EB on the 2008 Benefit year was not subject to carryover.

In Vaserman v. State of Wisconsin Labor and Industry Review Commission, Case No. 12-CV-1368 (Wis. Cir. Ct. Milwaukee Co., Oct. 5, 2012), the circuit court affirmed the commission's decision that in week 17 of 2011, the claimant did not meet the definition of "exhaustee;" and the claimant was ineligible for EUC benefits from the 2010 Benefit year, because he had not used up the carryover EUC from the 2008 Benefit year.

For the claimant, his EUC Tier 3 benefits available from this 2008 Benefit year totaled $2,457.00 with the additional EUC Tiny Tier 2 of $189.00 available. The claimant filed for and received partial benefits as follows:

Week Ending

UI Week

Amount Paid

Total Paid

April 23, 2011

17

$75.00

$75.00

April 30, 2011

18

$75.00

$150.00

May 7, 2011

19

$75.00

$225.00

May 14, 2011

20

$75.00

$300.00

May 21, 2011

21

$189.00

$489.00


The claimant ceased filing benefits after week 21 of 2011 until July 11, 2011 (week 29). At that time, although the Tier 3 benefits ($1,968.00) and the "Tiny Tier 2" ($189.00), continued to carry over from his 2008 Benefit year, the claimant had sufficient base period wages to establish a new third benefit year (2011 Benefit year) (10) for "regular" unemployment insurance benefits with a $228.00 weekly benefit rate and a $4,846.00 maximum benefit amount. (11)

The claimant filed for and was paid regular UI benefits on his 2011 Benefit year as follows:

Week Ending

UI Week

Amount Paid

Total Paid

July 16, 2011

29

$228.00

$228.00

July 23, 2011

30

$228.00

$456.00

July 30, 2011

31

$228.00

$684.00

August 6, 2011

32

$228.00

$912.00

August 13, 2011

33

$228.00

$1,140.00

August 20, 2011

34

$228.00

$1,368.00

August 27, 2011

35

$228.00

$1,596.00

September 3, 2011

36

$228.00

$1,824.00

September 10, 2011

37

$228.00

$2,052.00

September 17, 2011

38

$228.00

$2,280.00

September 24, 2011

39

$228.00

$2,508.00

October 1, 2011

40

$228.00

$2,736.00

October 8, 2011

41

$228.00

$2,964.00

October 15, 2011

42

$228.00

$3,192.00

October 22, 2011

43

$228.00

$3,420.00

October 29, 2011

44

$228.00

$3,648.00

November 5, 2011

45

$228.00

$3,876.00

November 12, 2011

46

$228.00

$4,104.00

November 19, 2011

47

$228.00

$4,332.00

November 26, 2011

48

$228.00

$4,560.00

December 3, 2011

49

$228.00

$4,788.00

December 10, 2011

50

$58.00

$4,846.00

As of week 50 of 2011, the claimant used up the regular unemployment insurance benefits available to him from his 2011 Benefit year.

Despite the fact that the claimant had carryover EUC remaining from the 2008 Benefit year, the department erroneously set up a new EUC Tier 1 claim, based upon the 2010 Benefit year, with the $335.00 weekly benefit rate and the $5,019.00 maximum benefits available; these benefits paid as follows:

Week Ending

UI Week

Amount Paid

Total Paid

December 17, 2011

51

$335.00

$335.00

December 24, 2011

52

$335.00

$670.00

December 31, 2011

53

$335.00

$1,005.00

January 7, 2012

1

$335.00

$1,340.00

January 14, 2012

2

$335.00

$1,675.00

January 21, 2012

3

$293.00

$1,968.00

When the department discovered the error of not recognizing the carryover available from the 2008 Benefit year, the petitioned determinations were issued. (12)

The claimant makes various arguments for why these determinations are not correct. However, based upon the foregoing analysis, the commission affirms the determinations. In particular, the claimant had used up all his regular unemployment insurance benefits on his 2011 Benefit year and was not eligible for any regular unemployment insurance or EB benefits at that time. He met the definition of an "exhaustee" under § 4001(b) and was therefore eligible for EUC benefits. The claimant had carryover EUC available on his 2008 Benefit year and that amount needed to be paid out before any EUC could be paid on his subsequent benefit years. (13)

The order of payment is correct and, while the department may have paid weeks 51 of 2011 through 3 of 2012 erroneously, that does not allow the claimant to continue to receive payments at that erroneous amount.

Further, the overpayment calculation is correct and the department properly waived repayment of the overpayment given the nature of the department's error. Specifically, in terms of the overpayment calculation, had the department carryover benefits been paid correctly, the claimant should have received benefits for weeks 51 of 2011 through 3 of 2012 from his 2008 Benefit year as follows:

Week Ending

UI Week

Amount Paid

Total Paid

December 17, 2011

51

$189.00

$189.00

December 24, 2011

52

$189.00

$378.00

December 31, 2011

53

$189.00

$567.00

January 7, 2012

1

$189.00

$756.00

January 14, 2012

2

$189.00

$945.00

January 21, 2012

3

$189.00

$1,134.00

These amounts would have been paid from the carryover EUC Tier 3, leaving a balance of $834.00 available together with the "Tiny" Tier 2 of $189.00 remaining as carryover. These numbers match with the department's overpayment calculation; for weeks 51 of 2011 through 2 of 2012, the claimant was overpaid $146.00 each week and was overpaid $104.00 in week 3 of 2012, resulting in a total overpayment of $834.00.

Thus, the commission finds:

For hearing no. 12603628MW, that as of week 51 of 2011, the claimant was an exhaustee eligible for carryover Emergency Unemployment Compensation (under the EUC Tier 3 and "Tiny" EUC Tier 2 related to his May 23, 2008 computation), pursuant to The Department of Defense Appropriations Act, Public Law 111-118,dated December 19, 2009.

For hearing no. 12603185MW, that for weeks 51 of 2011 through week 3 of 2012, the claimant was incorrectly paid EUC benefits at a rate of $335.00 per week when he should have been paid benefits at the rate of $189.00 per week, resulting in an overpayment of benefits in the amount of $834.00; repayment of the overpayment is waived pursuant to Wis. Stat. § 108.22 (8) because the benefits were paid erroneously due to department error and without fault on behalf of the claimant.

DECISION

The determinations are modified to reflect which Benefit years contain carryover and EUC eligibility and, as modified, are affirmed. Accordingly, as of week 51 of 2011, the claimant was an exhaustee for EUC purposes and was eligible for carryover EUC (under the EUC Tier 3 and "Tiny" EUC Tier 2 related to his 2008 Benefit year), and for weeks 51 of 2011 through week 3 of 2012, the claimant was incorrectly paid EUC benefits at a rate of $335.00 per week when he should have been paid benefits at the rate of $189.00 per week, resulting in an overpayment of benefits in the amount of $834.00; repayment of the overpayment is waived .

Dated and Mailed November 30, 2012

BY THE COMMISSION:


/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

 


Appealed to Circuit Court.  Affirmed September 4, 2013.  [Summary of Circuit Court decision]

 

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Footnotes:

(1)( Back ) This was based upon an EUC08-707, dated May 24, 2011, setting forth an EUC $335.00 benefit rate, total EUC available of $5,019.00, with a benefit year beginning on July 11, 2010 and ending on July 9, 2011.

(2)( Back ) This was based upon an EUC08-707C, dated December 21, 2011, setting forth an EUC $189.00 benefit rate, total EUC available of $189.00, with a benefit year beginning on July 11, 2010 and ending on July 9, 2011. This computation also stated,

You have Emergency Unemployment Compensation (EUC 08) remaining on your prior benefit year. These remaining benefits are again payable since your most recent claim is exhausted.

(3)( Back ) For hearing no. 12603185MW, no testimony was taken on the failure to appear given the abrupt ending of the companion hearing.

(4)( Back ) Based upon the law's initial adoption, EUC was originally referred to as EUC08; however, given the extensions over the years, the amended programs dropped the "08" and were simply referred to the benefits as "EUC."

(5)( Back ) Unemployment Insurance Program Letter No. 23-08, Change 3, dated December 24, 2008, contained attached, "Questions and Answers on the EUC 08 Extension Act." In section D, "Multiple EUC08 Claims and Order of Payment," the program letter directed that if additional First-Tier benefits were available, or new Second-Tier benefits, and the claimant had two EUC claims, benefits should be paid on the oldest EUC claim first.

(6)( Back ) EB is a permanent program of benefit extensions in periods of high unemployment that is separate from temporary emergency benefit programs such as EUC. The payment of EB benefits is made subject to the provisions of the Wisconsin Unemployment Insurance Law, specifically, Wisconsin Stat. 108.141. Wisconsin Stat. 108.141(3) requires that an individual must meet the State's statutory definition of "exhaustee" in order to be eligible to receive EB benefits. See, Wis. Stat. 108.141(1)(b) which provides, in applicable part, as follows:

"Exhaustee" means an individual who, with respect to any week of unemployment in the individual's eligibility period:

1. Has received, prior to that week, all of the regular benefits that were available to the individual under this chapter or any other state law, including dependents' allowances and benefits payable to federal civilian employees and former military personnel under 5 USC ch 85, in the individual's current benefit year that includes that week or is precluded from receiving regular benefits by reason of the law of another state which meets the requirement of sec. 3304(a)(7) of the internal revenue code or is precluded from receiving regular benefits by reason of a seasonal limitation in the law of another state. ...

(7)( Back ) EUC Tiers 1 and 2 were available to claimants in all states. Tier 3 was available if a state's insured unemployment rate (IUR) was 4.0% or its seasonally adjusted total unemployment rate was  6.0%. Tier 4 was available if the state's IUR was 6.0% or its seasonally adjusted total unemployment rate was  8.5%.

(8)( Back ) Because of the one week nature, this came to be referred to as "Tiny Tier 2."

(9)( Back ) Tier 3 was allowed to be paid first with the additional Tier 2 week paid upon the exhaustion of Tier 3. See, Sec. 5 "Coordination" language set forth in The Worker, Homeownership, and Business Assistance Act of 2009 (Worker Assistance Act), Public Law 111-92, enacted on November 6, 2009.

(10)( Back ) The department witness referred to the claimant's 2011 Benefit year as his "active" benefit year, his 2010 Benefit year as his "inactive" benefit year and his 2008 Benefit year as his "history" benefit year.

(11)( Back ) Department records reflect this benefit year was computed, with a monetary dated July 21, 2011, based upon wages in the second quarter of 2010 from Lakeshore Medical Clinic Ltd., totaling $5,715.40; and wages from Dr. Steven Greenman of $1,000.00, $2,800.00 and $2,600.00 in the third and fourth quarters of 2010 and the first quarter of 2011, respectively. Wis. Stat. 108.06 explains the benefit entitlement computations in greater detail.

(12)( Back ) Again, the determination for hearing no. 12603628MW, held that as of week 51 of 2011, the claimant was an exhaustee and was eligible for Emergency Unemployment Compensation (under the EUC Tier 3 and "Tiny" EUC Tier 2 related to his May 23, 2008 benefit year). The determination for hearing no. for 12603185MW held that for weeks 51 of 2011 through week 3 of 2012, the claimant was incorrectly paid unemployment insurance benefits at a rate of $335.00 per week when he should have been paid benefits at the rate of $189.00 per week. The determination waived repayment of the overpaid benefits.

(13)( Back ) As both department witnesses testified, no EUC monetary should have been computed for the claimant's 2010 Benefit year because the claimant qualified for a new benefit year for regular unemployment insurance benefits and since he had EUC Tier 3 benefits remaining as carry on his 2008 Benefit year. The claimant would never be eligible for EUC on his 2010 Benefit year and the language of 4002(g) of the Unemployment Compensation Act of 2010, Public Law 111-205 (enacted July 22, 2010) did not apply. 

 


uploaded 2012/12/07