STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126
http://dwd.wisconsin.gov/lirc/

WILLIAM J CHAO, Employee

EAGLE MOVERS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 13607069M
and 13607071MW


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 makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee works as a driver for the employer, a moving and storage business. He has worked for the employer since 2005. The employee's rate of pay is $14.50 per hour, and he works between 20 and 40 hours per week. The employee was told that he could receive unemployment insurance benefits when he was not working full-time.

Department records show that the employee received partial unemployment benefits for three weeks in 2010, for one week in 2011, and for six weeks in 2012. In each of those weeks, the employee reported work performed and wages earned.

Department records show that the employee opened a claim for benefits on April 3, 2013 (week 14), and was sent a Handbook for Claimants the following day. Prior to opening this claim, the employee had most recently received benefits in week 38 of 2012. The employee filed benefit claims for weeks 14 through 30 of 2013.  Week 14 of 2013 was his waiting week. The employee received unemployment benefits of $262 for weeks 15 through 29 of 2013. The employee used a pay phone to file his weekly claims.

Beginning with week 43 of 2012, the department modified the question on the weekly claim certification asking whether the claimant had worked during the week for which benefits were being claimed. The question changed from "Did you work?" to "During this week, did you work or will you receive sick pay, bonus pay, or commission?"

When filing claims for weeks 15 through 30 of 2013, the employee responded "no" to the modified "Did you work or will you receive sick pay, bonus pay, or commission?" question. He had, in fact, worked for the employer in those weeks.

Claimants who file for unemployment insurance benefits are responsible for correctly and completely reporting information for each week they claim benefits, because benefits are initially paid based on the information claimants provide. Claimants who conceal information from the department when filing for benefits may be subject to overpayments and penalties. For unemployment insurance purposes, conceal means "to intentionally mislead or defraud the department by withholding or hiding information or making a false statement or misrepresentation."(1)

A claimant who conceals work performed or wages earned when filing a weekly claim certification is ineligible to receive benefits for the week claimed.(2) In addition, the claimant is ineligible for benefits in an amount equivalent to two, four, or eight times the claimant's weekly benefit rate for each act of concealment.(3) This ineligibility is applied against benefits and weeks of eligibility for which the claimant would otherwise be eligible after the week of concealment.(4) Furthermore, consistent with federal directives, the department assesses a penalty against the claimant in an amount equal to 15 percent of the benefits erroneously paid to the claimant as a result of one or more acts of concealment.(5)

On August 27, 2013, the department issued two determinations finding that, when filing for benefits for weeks 15 through 30 of 2013, the employee concealed work performed and wages earned. The first determination resulted in an overpayment of $3,930 and an overpayment penalty of $589.50. The second determination reduced the employee's benefit amount by $8,384 for benefits payable through August 24, 2019.

The employee appealed the department's determinations. Both the employee and his employer appeared at the hearing before the ALJ. The employer had completed for the department a weekly earnings audit, summarizing the employee's wages for the weeks at issue. The employer expressed its belief that the employee did not fully understand the unemployment claims filing process, because the employee "is not of the character to lie" or to try to deceive the department.

The employee did not dispute the wages reported by the employer. When he opened his claim in April 2013, the employee reported that he was working reduced hours for the employer. The employee has a high school education, but he was not very good at English and had some difficulties in school. The employee testified that he answered "no" to the question "Did you work or will you receive sick pay, bonus pay, or commission?" on his weekly claim certifications for the weeks at issue, because he had not received any sick pay, bonus pay, or commission. The employee believed that, if he answered "yes" to the question, he would be saying that he received sick pay, bonus pay, or commission, and he did not want to lie about that. The employee believed that the first question on the weekly claims certification was about working and he answered "yes" to report that he did work. The employee did not hear a question asking him to report his wages.

The ALJ affirmed the department's determinations, finding that the employee concealed his work and wages from the department when filing claims for weeks 15 through 30 of 2013. The ALJ specifically found that the employee "provided no reasonable explanation" for failing to report his wages to the department and that "[t]he question to which the claimant gave a false answer was simple and straightforward."

The employee petitioned for commission review. The issue to be decided is whether the employee concealed work performed and wages earned when filing his weekly claim certifications for weeks 15 through 30 of 2013.

The burden to establish that a claimant concealed information is on the department.(6) As a form of fraud, concealment must be proven by clear, satisfactory, and convincing evidence.(7) Concealment will not be found where a claimant makes an honest mistake or misinterprets information received from the department.(8) Concealment requires an intent or design to receive benefits to which the claimant knows he or she is not entitled.(9)

After reviewing all of the evidence in this case, the commission is not satisfied that concealment was established. Contrary to the ALJ's finding, the employee provided a rational explanation for his failure to report his work and wages on his weekly claim certifications when filing for benefits for weeks 15 through 30 of 2013. The employee explained that he was confused by the fourth question, "During the week, did you work or will you receive sick pay, bonus pay, or commission?" The employee's confusion is reasonable.

The department's former question - "Did you work?" - was straightforward and not easily susceptible to misinterpretation.(10) However, the department's modified version - "During the week, did you work or will you receive sick pay, bonus pay, or commission?" - presents two distinct, alternative questions within one compound question. There are inherent dangers in inviting an answer to a compound question, because it is often not possible to be certain to which part, or parts, a single response applies.(11) This is especially true when a claimant files claims by telephone, where the last question heard is not "Did you work?"

Here, the employee believed that he would be providing false information to the department if he answered "yes" when asked if he received sick pay, bonus pay, or commission. Given the employee's good faith belief and the fact that he had reported work performed and wages earned on his weekly claim certifications prior to week 43 of 2012, the commission cannot find that the employee intentionally replied "no" to both parts of the bifurcated question.

The commission notes that the ALJ marked a Form UCB-37, Notice of Benefit Overpayment, as an exhibit. A copy of this form had been sent to the employee in October 2012 concerning week 38 of 2012. Presumably, the form was marked to establish that the employee had been warned of the need to report all wages earned. Yet, the employee had not failed to report his wages for week 38 of 2012. The employee had correctly reported that he had worked and earned wages. There was simply a discrepancy between the amounts reported by him and his employer.

Finally, there is no evidence in the record showing an intent or design by the employee to receive unemployment insurance benefits to which he knew he was not entitled. The employee gave an honest answer to a compound question relayed to him on a pay phone via interactive voice response technology. He did not have the benefit of seeing the compound question in writing before or after responding to it.

The commission therefore finds that, in weeks 15 through 30 of 2013, the employee worked and earned wages, but he did not conceal from the department the work performed and the wages earned in those weeks, within the meaning of Wis. Stat. § 108.04(11), and is thus entitled to partial benefits for those weeks, pursuant to Wis. Stat. § 108.05(3).

The commission further finds that the employee's failure to report work and wages from the employer on his weekly claim certifications for weeks 15 through 30 of 2013, while not fraudulent, prevents waiver of recovery of the overpayment, under Wis. Stat. § 108.22(8)(c). This matter will be remanded to the department for a recalculation of the employee's overpayment in light of his eligibility for partial benefits for the weeks at issue.

DECISION AND ORDER

The appeal tribunal decisions are reversed. Accordingly, the employee is entitled to partial unemployment insurance benefits for weeks 15 through 30 of 2013. As a result of this decision, the employee's unemployment insurance benefit amount shall not be reduced, and there is no overpayment penalty.

This matter is remanded to the department for a calculation of the employee's entitlement to partial unemployment benefits for the weeks at issue and any corresponding overpayment.

Dated and mailed  January 17, 2014 

BY THE COMMISSION:

/s/ Laurie R. McCallum, Chairperson

/s/ C. William Jordahl, Commissioner

/s/ David B. Falstad, Commissioner

NOTE: The commission did not consult with the ALJ before reversing the appeal tribunal decisions. The commission must only consult with an ALJ with respect to his or her impressions and conclusions regarding the credibility of witnesses in situations where the ALJ heard conflicting testimony and the commission reverses the ALJ and makes contrary findings. See Braun v. Indus. Comm'n, 36 Wis. 2d 48, 57, 153 N.W.2d 81 (1967). In this case, there was no conflicting testimony. The employee agreed that he performed work and earned wages in the weeks at issue. He did not dispute the wages reported by the employer. Both the employee and his employer testified that the employee did not understand the pertinent question asked of him and did not intend to conceal information from the department.

chaowi_urr . doc : 152 :  BR 330 

cc: EAGLE MOVERS AND STORAGE

Editor’s Note:  Footnote 11 should read, “ See, e.g.,  Atunnise v. Mukasey, 523 F.3d 830, 835 (7th Cir. 2008), citing 81 Am. Jur. 2d Witnesses § 714 (2008)(the vice of the compound question is generally recognized; a question which embraces several questions is improper).”



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Footnotes:

(1)( Back ) Wis. Stat. § 108.04(11)(g).

(2)( Back ) Wis. Stat. § 108.05(3)(d).

(3)( Back ) Wis. Stat. § 108.04(11)(b) and (be).

(4)( Back ) Wis. Stat. § 108.04(11)(bm).

(5)( Back ) Wis. Stat. § 108.04(11)(bh).

(6)( Back ) Scott G. Lynch, UI Dec. Hearing No. 10404406AP (LIRC Mar. 11, 2011); Holloway v. Mahler Enter., Inc., UI Dec. Hearing No. 11606291MW (LIRC Nov. 4, 2011).

(7)( Back ) Kamuchey v. Trzesniewski, 8 Wis. 2d 94, 98, 98 N.W.2d 403 (1959); Schroeder v. Drees, 1 Wis. 2d 106, 112, 83 N.W.2d 707 (1957).

(8)( Back ) Joseph W. Hein, Jr., UI Dec. Hearing No. 00605374MW (LIRC Dec. 13, 2001); Scott G. Lynch, supra.

(9)( Back ) 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).

(10)( Back ) Candace K. Pitts, UI Dec. Hearing No. 95000045DV (LIRC May 25, 1995).

(11)( Back ) See, e.g., Asani v. INS, 154 F.3d 719, 727 (7th Cir. 1998), citing 81 Am. Jur. 2d Witnesses § 714 (2008)(the vice of the compound question is generally recognized; a question which embraces several questions is improper).