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

ROBERT J BUFFHAM, Claimant

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98607359MW

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 the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The claimant worked less than a full week for a trucking company at Kansas City, Kansas, during week ending December 27, 1997 (week 52). His gross earnings were $181.44.

The issue which must be decided is whether the claimant's unemployment benefits are reduced for week 52 of 1997 because of his wages.

Wis. Stat. § 108.02(26) provides:

"Wages. Unless the department otherwise specifies by rule:

(a) `Wages' means every form of remuneration payable, directly or indirectly, for a given period, or payable within a given period if this basis is permitted or prescribed by the department, by an employing unit to an individual for personal services."

The claimant quit work with the trucking company on December 27, 1997 (week 52), and drove the employing unit's truck back to Kansas City, Kansas, rather than going to New Jersey where he was dispatched. The trucking company made deductions from the claimant's paycheck for driving unauthorized mileage and for missing loading devices. After the deductions, there was no net amount payable to the claimant.

The claimant did receive remuneration payable, directly or indirectly for week 52. While he was not allowed to spend his wages as he wished, he did receive a benefit from those wages. In addition, the ALJ found, in a decision issued on November 25, 1998, that the claimant concealed work and wages when he filed an unemployment insurance claim for week ending December 27, 1997 (week 52). Thus, the ALJ determined that the claimant did in fact receive wages and the ALJ's decision in this case in contrary to his decision in the other case.

The claimant received wages in the amount of $181.44 for work performed in week ending December 27, 1997 (week 52), resulting in a weekly benefit payment totaling $180.00, within the meaning of Wis. Stat. § 108.02(26) and § 108.05(3).

The commission further finds that the claimant was paid benefits for week 52 of 1997 in the amount of $282.00 but was entitled to benefits in the amount of $180.00, thus resulting in the claimant's receiving $102.00 for which he was not eligible and to which he is not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), the claimant is required to repay such sum to the Unemployment Reserve Fund.

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c), because the overpayment resulted from the fault of the claimant as provided in Wis. Stat. § 108.04(13)(f), Stats., and the overpayment also was not the result of a departmental error. See Wis. Stat. § 108.22(8)(c)2. The overpayment resulted from the claimant's failure to report his wages to the department.

DECISION

The decision of the administrative law judge is reversed. Accordingly, in week 52 of 1997, the claimant is eligible for a weekly benefit payment of $180.00. He is required to repay the sum of $102.00 to the Unemployment Reserve Fund.

Dated and mailed: February 17, 1999
buffhro.urr : 145 : 1 UW 900

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did not discuss witness credibility and demeanor with the ALJ but reverses the ALJ's decision because it reached a different legal conclusion when applying the law to the facts found by the ALJ.

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 U.C. and other special benefit programs that are due to this state, another state or to the federal government.

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

cc: DIRECTOR GREGORY FRIGO
BUREAU OF LEGAL AFFAIRS

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