NICOLE M SUCHOWSKI, Employee

GOLDEN COUNTY FOODS INC, Employer

An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued two appeal tribunal decisions in this matter. The employee timely petitioned for commission review.

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 decisions of the ALJ, and it adopts the findings and conclusions in those decisions as its own.

The appeal tribunal decisions are affirmed. Accordingly, the employee is not eligible for the payment of benefits in weeks 13 through 16, 18 through 22, 24 through 31, 33, and 34 of 2013. The employee is required to repay the sum of $2,006 to the Unemployment Reserve Fund and is liable for an overpayment penalty in the amount of $300.90. In addition, the employee's benefit amount shall be reduced by $4,444 in unemployment benefits that become payable by September 14, 2009.

Dated and mailed January 9, 2014

suchoni_usd . doc : 152 : BR 330

BY THE COMMISSION:

/s/ Laurie R. McCallum, Chairperson

/s/ C. William Jordahl, Commissioner

/s/ David B. Falstad, Commissioner

The employee petitioned for commission review of the adverse appeal tribunal decisions. The employee argues that she should not be found to have concealed work performed and wages earned, because the department never informed her that its policy had changed with respect to verifying work and wages. The employee argues that she has been filing for unemployment insurance benefits since 2007 and the department always "checked the hours with the employer before sending out a check." The employee agrees that she may have "misfiled [her] hours," but she argues that "unemployment is just as responsible to check hours reported before sending any payment to make sure hours reported were not in error." The commission is not persuaded by these arguments and affirms the appeal tribunal decisions.

First, the department's policy regarding the verification of wages has not changed. The department automatically sends an employer a Form UCB-23, Wage Verification/Eligibility Report, whenever a claimant reports wages earned or pay received on a weekly claim certification. If a claimant does not report having performed any work or having received any pay in a given week, the department has no way of knowing that a UCB-23 should be sent to an employer. When filing claims for the weeks at issue, the employee did not report that she had worked. Therefore, no Form UCB-23s were created and mailed to her employer. Based on the employee's claim of no work, it appeared as though she had been totally unemployed in those weeks.

Second, the department does not have the luxury of verifying all information reported by a claimant before paying unemployment benefits. States have a statutory duty to implement an unemployment insurance system that ensures the payment of compensation with the "greatest promptness that is administratively feasible." 20 C.F.R. § 640.3(a). States must strike a reasonable balance between a claimant's interest in prompt payment and the state's interest in minimizing the costs of delay and in preventing fraudulent claims. Pennington v. Doherty, 110 F.3d 502, 507 (7th Cir. 1997); Jenkins v. Bowling, 691 F.2d 1225, 1230, 1233 (7th Cir. 1982).

A claimant's eligibility for unemployment benefits depends on the claimant's ability to satisfy a number of statutory provisions. In order to fulfill its obligation to promptly determine a claimant's eligibility for benefits and, if eligible, to promptly pay those benefits, the department relies on the truthfulness of claimants' self-reporting as to many of the circumstances affecting eligibility. To receive benefits for any week of unemployment, Wis. Stat. § 108.08(1) requires that a claimant "give notice to the department with respect to such week of unemployment within such time and in such manner as the department may by rule prescribe." The rules prescribed by the department are found in Wis. Admin. Code ch. DWD 129. Pursuant to Wis. Admin. Code § DWD 129.01(1), a claimant is not eligible for benefits for any week of total or partial unemployment unless the claimant complies with the department's claims procedures. One such procedure includes answering the questions asked of the claimant when filing weekly claim certifications.

In this case, the employee understood the claims filing process. Department records show that the employee filed for, and received, partial benefits for weeks prior to week 13 of 2013. To receive such benefits, the employee would have had to report that she worked, and she would have been required to provide details regarding the work that was performed and the wages earned. From this, the employee's partial benefits entitlement would have been calculated.

The employee filed benefit claims for weeks 13 through 16, 18 through 22, 24 through 31, 33, and 34 of 2013 via the internet. For each week, she was asked, "Did you work or will you receive sick pay, bonus pay, or commission?" She was also asked, "Did you receive, or will you receive, holiday pay?" In each of the weeks at issue, the employee responded "no" to those questions. The employee had the opportunity to review her answers to the questions asked of her and to see that she had not reported any wages before submitting her weekly claim certifications. The department, then, unaware that the employee had worked or had received holiday pay during weeks in which she certified that she had not, promptly paid full benefits to the employee.

After receiving full benefits for weeks in which she had worked, the employee should have realized that her benefits had not been reduced by the wages she had earned. Although the employee admitted that she thought it was "odd" that had received full benefits despite having worked and earned wages, she did not contact the department about the matter. Instead, she retained the benefits. Such behavior, continued over a period of time greater than five months, evinces an intent or design by the employee to receive benefits to which she knew she was not entitled. Karandjeff v. Cmty. Living Alliance Inc., UI Dec. Hearing No. 11611430MW (LIRC June 20, 2012); Nestor Gutierrez, UI Dec. Hearing No. 00005766MD (LIRC July 19, 2002).

During the hearing in this matter, the employee asserted that she has ADHD, which may have contributed to her failure to properly answer the questions asked of her when filing claims for the weeks at issue. However, in the absence of evidence by a healthcare professional, the commission cannot make a determination that the employee's failure to report work performed and wages earned was the result of a medical condition.

Finally, the employee notes in her petition that the employer discharged her as a result of the concealment issue. The commission notes that the employee's separation from employment has been adjudicated separately by the department. It is not an issue presently before the commission and will not be addressed.

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