ANITA SHAW, Employee

THE DR HOWARD L FULLER EDUCATION FOUNDATION INC., Employer

On January 9, 2014, an administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued three appeal tribunal decisions in this matter.

• For Hearing No. 136099591MW, the ALJ held that, in weeks 43 of 2012 through 32 of 2013, the employee worked and earned wages and that she concealed that work and those wages on her weekly claim certifications. As a result, the employee was overpaid benefits in the amount of $3,062.00, which she was required to repay, and she was assessed a concealment overpayment penalty of $459.30.

• For Hearing No. 13609593MW, that, in weeks 33 through 43 of 2013, the employee worked and earned wages and that she concealed that work and those wages on her weekly claim certifications. As a result, the employee was overpaid benefits in the amount of $759.00, which she was required to repay, and she was assessed a concealment overpayment penalty of $113.85.

• For Hearing No. 13609592MW, the ALJ held that, in weeks 43 of 2012 through 43 of 2013, the employee concealed work performed and wages earned and a material fact relating to her eligibility on her weekly claim certifications. As a result, in addition to the concealment overpayment penalties assessed in Hearing Nos. 13609591MW and 13609593MW, the ALJ concluded that the statutory concealment penalty applied and therefore the employee's future benefit amounts would be reduced by $8,268.00 for benefits and weeks that become payable in the six-year period ending November 23, 2019.

The employee filed a timely petition for 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:

A single de novo hearing was held by the ALJ to address issues raised in five determinations issued by the department. Only the employee appeared at the hearing before the ALJ. No one appeared on behalf of the employer or the department. During the employee's testimony, eight documents or sets of documents were marked as exhibits by the ALJ and later received into evidence.

Facts Adduced at Hearing

The employee has been working part-time as a site checker for the employer, a transitional living facility, since 2008. Since October 2012, the employee is paid $8.00 per hour. The number of hours she works each week varies.

Exhibit 2 is an "ADJUDICATORS PRELIMINARY CLAIMANT REPORT," which summarizes the employee's unemployment claims history. According to this report:

• The employee has been receiving benefits since at least 2009, because her claim automatically renewed in week 4 of 2010.

•  Throughout 2010, 2011, and the first nine months of 2012, the employee reported working for and receiving wages from the employer, The Dr. Howard L. Fuller Education Foundation Inc., on her weekly claim certifications. The employee received partial unemployment insurance benefits through week 41 of 2012.

•  Throughout 2010, 2011, and the first nine months of 2012, the employee received by direct deposit regular benefits and several tiers of emergency unemployment compensation. Her weekly benefit rate has varied from $55.00 per week to $139.00 per week. Child support agency payments of $9.00 per week reduced the amount of weekly unemployment benefits paid to the employee. For the weeks immediately prior to week 41 of 2012, the employee received $32.00 per week, of which $9.00 was directed to the child support agency.

•  The employee's most recent valid new claim was established on October 9, 2012 (week 41). The employee reported that she had worked and earned wages of $64.00 in that week. It was her waiting week, so no benefits were paid.

•  Beginning with week 42 of 2012, the employee received by direct deposit unemployment insurance benefits in the amount of $69.00 per week ($78.00 less $9.00 for child support).

•  Beginning with week 16 of 2013, the employee received by direct deposit unemployment insurance benefits in the amount of $60.00 per week, because she had exhausted her regular unemployment benefits and again began receiving emergency unemployment compensation.

Exhibit 3 shows that, on October 10, 2012 (week 41), and October 8, 2013 (week 41), the department mailed a Claim Confirmation, FORM TYPE 10148, to the employee. Exhibit 3 contains a sample Form UCB-10148, titled "CLAIM CONFIRMATION AND INSTRUCTIONS." The sample explains that, "if this is a new application," the packet includes a handbook (UCB-10).

Exhibit 4 is a copy of a UCB-10, Handbook for Claimants, with a revision date of October 2012. Prior to week 43 of 2012, Question No. 4 on the weekly claim certification was simply "Did you work?" Beginning in week 43 of 2012, the week ending October 27, 2012, and as described in Exhibit 4, Question No. 4 was modified to "During the week, did you work or did you receive or will you receive sick pay, bonus pay or commission?"

The employee testified that she did not receive Exhibit 4, the Handbook for Claimants, in the mail but was, instead, directed to go online and read it. She had received a paper handbook in the mail sometime before 2013 but was not sure exactly when. The employee did not read the handbook when she received it. She only referred to the handbook when she had an issue and needed a phone number to call the department. The employee testified that she completed the twelfth grade and has a high school diploma.

Exhibits 5 and 6 show that the employee filed weekly claim certifications for unemployment insurance benefits for weeks 42 of 2011 through 43 of 2013. When filing claims for weeks 42 of 2011 through 41 of 2012, the employee responded "Yes" to Question No. 4, which asked "Did you work?" The employee answered "No" to that question in week 42 of 2012. Beginning in week 43 of 2012, the employee responded "No" to the modified Question No. 4, which asked "During the week, did you work or did you receive or will you receive sick pay, bonus pay, or commission?"

Exhibit 1 is a weekly earnings audit, which was mailed to the employer on November 6, 2013. The employer reported that the employee is paid $8.00 per hour. The number of hours the employee purportedly worked each week between week 43 of 2012 and 43 of 2013 ranged from eight to 28. Her wages correspondingly ranged from $64.00 to $224.00 per week.

Exhibit 2 shows that the employee was overpaid benefits totaling $85 in weeks 39, 40, and 41 of 2010, when there were discrepancies between the weekly wages she reported and the weekly wages the employer reported.

The employee testified that she spoke to a claims specialist in September or October 2013 after getting a letter in the mail. The claims specialist informed her that she had not been reporting her wages. The employee explained that the system had not asked her about wages. The claims specialist informed her that the next time she filed her claim she needed to answer "Yes" to the compound question which asked, in part, "Did you work?" The employee did so, and that is when she was finally asked to report her wages and she finally saw the requests for information that she was supposed to have been providing to the department.(1)

The employee was sent an interview notice on November 15, 2013, informing her that the department's records show a possible error with her unemployment insurance benefits because, when she filed claims for weeks 42 of 2012 through 43 of 2013, she failed to report wages from the employer. A copy of this notice was marked as Exhibit 7. When the employee spoke with an adjudicator in response to the notice, she explained that she was "just ignorant about filing each week" and must have been mixed up when she went from filing claims over the phone to filing claims online. "That is the only thing" she could think of as to why she did not report working each week. A summary of the employee's conversation with the adjudicator on November 27, 2013, was marked as Exhibit 8.

At the hearing on January 3, 2014, the employee explained to the ALJ that she stopped reporting her wages to the department because, when she filed her claims, the system stopped asking her if she worked or if she worked a total of 40 hours or more. The employee testified that she must have misunderstood what was asked of her, because there was no way she would not have reported her work and wages.

The employee testified that she was confused as to how to properly answer Question No. 4 because "did I work or would I receive sick pay, bonus pay, or commission is a trick question." The employee worked, but she did not receive, and would not receive, sick pay, bonus pay, or commission. The system used to ask her "Did you work?" by itself as one question, not all together with other questions.

The employee thought that it was odd that the amount of her weekly benefits directly deposited into her account went up from $23.00 per week to $69.00 per week beginning in week 42 of 2012. However, she did not believe the dollar amount changed because she stopped reporting her wages. The employee testified that "[t]hey changed it." The ALJ did not accept the employee's explanation and took "administrative notice" that the reason why the amount of the employee's weekly benefit payments changed was because the employee answered "No" to Question
No. 4 on her weekly claim certifications and failed to report her wages.

The employee explained that she was ignorant because she failed to realize that the department had combined the question about working with other questions. "I should have known better that they're going to ask you about wages but I didn't think they would put it together. A Yes with a No." The employee denied any intent to defraud the department, because she knew that a person "can go to jail for things like that."

Issues

The issues to be decided are (1) whether the employee worked and earned wages in weeks 43 of 2012 through 43 of 2013; (2) whether she concealed her work and wages from the department when filing weekly benefit claims; (3) whether she received benefits to which she was not entitled and which she must repay; and (4) whether any concealment penalties or future benefit reductions must be assessed.

Standards and Burden of Proof of Concealments

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."(2)

A claimant who conceals work performed or wages earned when filing a weekly claim certification is ineligible to receive benefits for the week claimed.(3) In addition, a claimant who conceals work performed, wages earned, or another material fact concerning benefits eligibility when filing a weekly claim certification 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.(4) This ineligibility is applied against benefits and weeks of eligibility for which the claimant would otherwise be eligible after the week of concealment.(5) 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.(6)

A claimant is presumed eligible for unemployment insurance benefits, and the party resisting payment must prove disqualification.(7) The burden to establish that a claimant concealed information is on the department.(8) As a form of fraud, concealment must be proven by clear, satisfactory, and convincing evidence.(9)

The unemployment insurance law must be "liberally construed to effect unemployment compensation coverage for workers who are economically dependent upon others in respect to their wage-earning status."(10) Laws imposing forfeitures, by contrast, must be strictly construed to narrow the range of acts that will lead to the harsh result of a forfeiture.(11) As a result, concealment will not be found where a claimant makes an honest mistake or misinterprets information received from the department.(12) Concealment requires an intent or design to receive benefits to which the claimant knows he or she is not entitled.(13)

The existence of fraud in the form of concealment must be resolved on a case-by-case basis. Because direct proof of a claimant's intent is rarely available, fraud may be proven by indirect (circumstantial) evidence and reasonable inferences drawn from the facts. There is a rebuttable presumption that parties intend the natural consequences of their actions.(14)

Analysis

In any case where concealment is an issue, the commission first determines whether there is sufficient direct evidence of concealment, such as an admission by the claimant, to conclude that the claimant intended to mislead or defraud the department to receive benefits to which the claimant knew he or she was not entitled. If there is not sufficient direct evidence of concealment, the commission then looks to see whether there is sufficient indirect evidence from which the commission can infer an intent on behalf of the claimant to mislead or defraud the department in order to receive benefits to which the claimant knew he or she was not entitled. Few cases contain direct evidence of concealment; most cases must rely on indirect evidence and the inferences that can be drawn from that evidence to establish concealment.

Review of the indirect evidence generally involves the following inquiry:

1. Did the claimant file a claim for each week at issue?
2. Did the claimant provide incorrect information to the department in filing the claim?
3. Were benefits improperly paid to the claimant as a result of the incorrect information?
4. Do the circumstances create an inference that the claimant intentionally provided incorrect information in order to obtain benefits to which the claimant was not entitled?

Generally, in analyzing whether a claimant obtained benefits to which he or she was not entitled and should be required to repay, only questions (1), (2), and (3) are relevant. However, in analyzing whether a claimant engaged in concealment, which requires a showing by clear and convincing evidence that a claimant intentionally misled or defrauded the department in order to obtain benefits to which the claimant knew he or she was not entitled, and which results in the imposition of a monetary penalty over and above the repayment of benefits, question (4) must be answered as well. An inference of concealment is not created by a mere showing that a claimant provided an incorrect answer when filing a claim.

If the evidence presented by the department does not suggest that the claimant intentionally provided an incorrect answer in order to obtain benefits to which the claimant knew he or she was not entitled, the inquiry ends. No concealment will be found.(15)

If the department presents sufficient evidence to create a reasonable inference that the claimant intended to mislead or defraud the department in order to receive benefits to which the claimant knew he or she was not entitled, the inquiry next turns to whether the explanation offered by the claimant for his or her actions successfully overcomes this inference.

This analysis is case specific, but the factors that may be considered are whether the claimant acted as a reasonable person filing for unemployment insurance benefits or whether the claimant acted in a wilful or reckless disregard of his or her responsibilities as a claimant when filing a claim. If the claimant establishes that it is more probable than not that he or she has made an honest mistake or good faith error in judgment, no concealment will be found. However, the claimant still will be required to repay the benefits which were overpaid. If the claimant fails to establish an honest mistake or good faith error in judgment, the inference of concealment drawn from the evidence remains and the commission will find concealment.

Application

Exhibit 6 established that the employee filed claim certifications for weeks 43 of 2012 through 43 of 2013. On each of the certifications, the employee answered "No" to Question No. 4, which asked "During the week, did you work or did you receive or will you receive sick pay, bonus pay or commission?"

Exhibit 1, together with the testimony of the employee, established that the employee did, in fact, work and earn wages in weeks 43 of 2012 through 43 of 2013. The employee agreed that she worked in those weeks but, because she did not answer Question No. 4 on the weekly claims certification correctly, she did not report any wages earned in those weeks. Claimants who earn wages in any given week may be eligible for partial unemployment benefits according to the partial benefits formula found at Wis. Stat. § 108.05(3)(a). Exhibit 2 shows that the employee received full benefit payments for weeks 43 of 2012 through 43 of 2013. Thus, the record supports findings that the employee filed claim certifications for those weeks; that she provided incorrect information on those claims; and that, as a result of the incorrect information, she received benefits to which she was not entitled.

The next step is to determine whether the circumstances in this case allow the commission to draw a reasonable inference that the claimant intentionally provided incorrect information in order to obtain the benefits she received but to which she was not entitled.

In this case, the employee had prior filing experience, having filed since 2009. She had reported work and wages on her weekly claim certifications, albeit in response to a simpler Question No. 4, since at least week 4 of 2010. The employee had received partial benefits in the weeks and years prior to week 43 of 2012. The employee had received a Handbook for Claimants at some point prior to 2013. She did not read the handbook but referenced it only when she needed to locate phone numbers to contact the department. The employee understood that claimants for unemployment insurance benefits are required to report on their weekly claim certifications if they worked. The record shows that the employee had failed to accurately report her wages during a three-week period in 2010, resulting in overpayments totaling $85.00. Therefore, from this evidence, it could be reasonably inferred that, when filing weekly claim certifications for weeks 43 of 2012 through 43 of 2013, the employee intentionally failed to report work and wages in order to receive benefits to which she was not legally entitled.

The final step is to determine whether the employee rebutted, through affirmative proof of good faith on her part, the inference that she intended to mislead or defraud the department.(16)

The employee testified that she was confused as to how to properly answer Question No. 4 after it became a multiple-part question in week 43 of 2012. The employee worked, but she did not receive, and would not receive, sick pay, bonus pay, or commission. The employee testified that she was "ignorant," because she should have realized that the automated system stopped asking her for her wages, but she did not.

The ALJ found that the employee intentionally withheld from the department information which affected her benefit eligibility. The ALJ rejected the employee's testimony that that she was confused by Question No. 4 and that she did not believe her weekly benefit payments increased because she stopped reporting her wages.

The commission consulted with the ALJ to obtain the ALJ's impressions as to the credibility of the witness, based on her demeanor, which factored into the ALJ's decision. In response, the ALJ indicated that "[t]he claimant's demeanor was interruptive and non-responsive."(17)

The commission considered the ALJ's response and disagrees with the ALJ's credibility assessment. The competent evidence in the record leads to the conclusion that the employee was confused by the new wording of Question No. 4. It asked her if, during the week, she worked or received or will receive sick pay, bonus pay, or commission. The employee had not received and would not receive sick pay, bonus pay, or commission, so she answered the question in the negative. The commission will not find intentional concealment based on a claimant's answer to a compound question.

The commission believes that the ALJ may have found the claimant's demeanor to be interruptive and non-responsive because the employee could not or would not give the ALJ the answers the ALJ wished to hear. In particular, the hearing record reflects that the ALJ repeatedly asked the employee why she had answered Question No. 4 in the negative beginning in week 42 of 2012, one week before the question changed. The employee did not have an answer for the ALJ. She was asked to recall a specific week 15 months earlier. It is possible that the employee answered Question No. 4 in the negative in week 42 of 2012 and was correct in doing so. In a companion decision issued in Hearings Nos. 13609589MW and 13609590MW, the commission found that there was no credible and probative evidence establishing that the employee did, in fact, work in week 42 of 2012.

It appears that the ALJ also wanted the employee to admit that her weekly benefit checks increased from $23.00 per week to $69.00 per week beginning in week 42 of 2012 because the employee stopped reporting her wages. The employee attempted to explain that the amount of her weekly benefit checks increased because "[t]hey changed it," but the ALJ would not accept the employee's testimony. Instead, the ALJ took "administrative notice" that the reason why the amount of the employee's weekly benefit payments changed was because the employee answered "No" to Question No. 4 and failed to report any wages.

However, the primary reason why the employee's weekly benefit rate changed in week 42 of 2012 was because the employee began a new benefit year. After her waiting period(18) in week 41 of 2012, the employee's weekly benefit rate increased from $55.00 per week to $78.00 per week. The department would have notified the employee of her new benefit rate through a computation, in accordance with Wis. Stat. § 108.09(2). The employee actually received $69.00 per week, after child support was deducted.

Moreover, it should be noted that, through week 25 of 2012, the employee had been receiving $107.00 per week in emergency unemployment compensation benefits, despite weekly wages of $64.00. It was only for weeks 28 through 40 of 2012 that the employee received the weekly amount of $23.00.

Therefore, the employee would not necessarily have been aware that she was answering Question No. 4 incorrectly and that she was receiving some unemployment benefits to which she was not entitled. The employee's weekly benefit rate had often fluctuated since 2009, ranging from $23.00 to $130.00 per week, after child support was deducted.

The evidence and all reasonable inferences drawn therefrom lead to the conclusion that, beginning in week 43 of 2013, the employee misunderstood what Question No. 4 on the weekly claim certification was asking her. The employee had been working for the same employer since 2008. It was not as though she had begun new employment and did not report it to the department. Since at least week 4 of 2010, which is as far back as the evidence goes, the employee had dutifully reported that she worked and earned wages from the employer. Nothing changed in week 43 of 2013, except for the department's question, which went from the simple "Did you work?" to the complex "During the week, did you work or did you receive or will you receive sick pay, bonus pay or commission?" Under these circumstances, it is most reasonable to infer that, had the employee not misunderstood the department's new compound question, she would have continued to report her work and her wages to the department on her weekly claims as she had been doing for several years.

The commission therefore finds that, in weeks 43 of 2012 through 43 of 2013, the employee worked and earned wages, but she 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)(b).

Because the employee did not conceal work performed and wages earned in those weeks, she is entitled to partial benefits, pursuant to Wis. Stat. § 108.05(3). The employee's benefit entitlement for the weeks at issue, and corresponding overpayment, is as follows:

The commission further finds that the employee's failure to report work and wages on her weekly claim certifications for weeks 43 of 2012 through 43 of 2013, while not fraudulent, prevents waiver of recovery of the overpayment, under Wis. Stat. § 108.22(8)(c). The employee must repay the amount of $1,886.00 to the department.

The appeal tribunal decisions are modified to conform to the above findings of fact and conclusions of law and, as modified, are affirmed in part and reversed in part. Accordingly, the employee is entitled to partial unemployment insurance benefits for weeks 43 of 2012 through 43 of 2013, as set forth in the table above. As a result of this decision, the employee is required to repay the benefits she received in error in the amount of $1,886.00. In addition, as a result of this decision, the employee's unemployment insurance benefit amount shall not be reduced, and there is no concealment penalty.

Dated and mailed June 12, 2014

shawan2_urr . doc : 152 : BR 330 – PC 714.01

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 five adverse appeal tribunal decisions concerning her failure to report work and wages from the employer, The Dr. Howard L. Fuller Education Foundation, beginning in week 42 of 2012. The employee argued that, if she intended to defraud the department, she would not have informed staff at the two RES sessions she attended that she was working part-time. The employee explained that she got confused when the question on the weekly claim certification changed from "Did you work?" to "During the week, did you work or did you receive or will you receive sick pay, bonus pay, or commission?" The employee was confused because "it's a yes and no together." The employee did not call the department when she started getting larger benefit payments, because there had been so many changes and it was "so hard to get ahold of" a claims specialist. Finally, the employee noted that she did not understand why her mistake took over a year to pick up. The commission agrees.

As explained in the commission's decision, supra, while the employee failed to provide accurate information to the department beginning in week 43 of 2013, the commission is unable to find that she had the fraudulent intent essential to support a finding of concealment. Instead, the employee was confused after the department modified Question No. 4 on the weekly claim certification beginning in week 43 of 2012. Compound questions, even those simpler in wording than the department's current Question No. 4, have been identified as a source of misunderstanding by claimants. See Unemployment Insurance Program Letter (UIPL) No. 19-11, National Effort to Reduce Improper Payments in the Unemployment Insurance (UI) Program, U.S. Department of Labor, Employment and Training Administration, June 10, 2011. When the answer to a compound question relates to the substantive issues and the ultimate outcome in a case, as it does here, the commission will not infer an intent on the part of the claimant to mislead or defraud the department because both the question and the answer can be misunderstood. Wallenkamp v. Arby's Restaurants, UI Dec. Hearing Nos. 13607281MW and 13607282MW (LIRC May 15, 2014).

The commission notes that the ALJ took "administrative notice" that the reason why the employee began receiving weekly benefits of $69.00 in week 42 of 2012 was because she stopped reporting her wages. This is an improper use of administrative notice. Administrative notice is the means by which agencies make factual findings without benefit of the adversarial presentation of evidence. Like judicial notice, administrative notice is an exception to the requirement that decisions be based solely upon evidence adduced at a hearing. Its purpose is to enhance adjudicative efficiency without sacrificing adjudicative accuracy.(19)

Unemployment insurance ALJs are permitted to take administrative notice of department records, generally recognized fact, or established technical or scientific fact having reasonable probative value, if the parties are given the opportunity to object and present evidence to the contrary before the ALJ issues a decision. Wis. Admin. Code § DWD 140.16(1). In this case, the ALJ could have taken administrative notice of the fact that the employee received a benefit payment of $23.00 in week 40 of 2012 and a benefit payment of $69.00 in week 42 of 2012, but it was improper to take administrative notice of why the department paid the employee $69.00. Such action requires a reasoning process and the formation of a conclusion.

Moreover, the ALJ's conclusion as to why the department paid the employee $69.00 beginning in week 42 of 2012 is not because the employee stopped reporting her wages. It is because the employee began a new benefit year in week 41 of 2012 and her weekly benefit rate increased from $55.00 per week to $78.00 per week. Even if the employee had reported wages of $64.00 in week 42 of 2012, her weekly benefit amount would have doubled from $23.00 to $46.00, even after deducting $9 from her benefit entitlement for child support. The employee was aware that her benefits would increase after week 41 of 2012, even if she was not completely aware of the amount of the increase. The employee had difficulty articulating her position on this issue, and the ALJ failed to facilitate a more complete explanation after reaching a contrary conclusion on the issue during the fact-finding hearing.

The "fair hearing" provision in sec. 303(a)(3) of the Social Security Act requires a reasonable opportunity for workers whose claims are denied to be heard by an impartial tribunal in an adjudicatory proceeding which assures them of elementary fairness. An unemployment insurance ALJ is responsible for discovering the facts and may not rely on the parties to present their cases and facts, as they understand them, and to offer complete proof.(20) A state agency is not to assume a hostile or an indifferent attitude in cases in which it views itself as an adverse party, because it leaves to the claimant the task of discovering exculpatory facts, a task claimants are most likely ill-prepared to perform.(21)

Finally, the commission is also curious as to why the employee's mistake took so long to discover. The employee had been working for the employer since 2008, and she had been filing for partial benefits since 2009. Department records show that the employer reported wages for the employee on a quarterly basis, yet a cross match of the employee's claims against the quarterly wage records was apparently not done between week 41 of 2012 and 44 of 2013. It would seem that, if the department were aggressively responding to the U.S. Department of Labor's call to action to develop state-specific strategies to bring down the improper payment rate in unemployment insurance benefits programs, see UIPL 19-11, supra, the department would cross match claimants with state wage reports on a basis more frequently than annually. Mistakes could be corrected sooner, and improper payments could be prevented before they occur.

Appealed to Circuit Court.  Affirmed, April 9, 2015.  [Circuit Court decision summary].

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(1)( Back ) Department records show that the employee resumed reporting her work and wages on November 10, 2013, on the claim certification she filed for week 45 of 2013.

(2)( Back ) Wis. Stat. § 108.04(11)(g)(2011-12, as amended through 2011 Wis. Act 236).

(3)( Back ) Wis. Stat. § 108.05(3)(d)(2011-12, as amended through 2011 Wis. Act 236).

(4)( Back ) Wis. Stat. § 108.04(11)(a), (b) and (be)(2011-12, as amended through 2011 Wis. Act 236).

(5)( Back ) Wis. Stat. § 108.04(11)(bm)(2011-12, as amended through 2011 Wis. Act 236).

(6)( Back ) Wis. Stat. § 108.04(11)(bh)(2011-12, as amended through 2011 Wis. Act 236).

(7)( Back ) Wis. Stat. § 108.02(11)(2011-12); Kansas City Star Co. v. DILHR, 60 Wis. 2d 591, 602, 211 N.W.2d 488 (1973).

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

(9)( 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).

(10)( Back ) Princess House, Inc. v. DILHR, 111 Wis. 2d 46, 62, 330 N.W.2d 169 (1983).

(11)( Back ) Liberty Loan Corp. & Affiliates v. Eis, 69 Wis. 2d 642, 649, 230 N.W.2d 617 (1975).

(12)( Back ) In re Joseph Hein, Jr., UI Dec. Hearing No. 00605374MW (LIRC Dec. 13, 2001); In re Scott Lynch, supra.

(13)( Back ) Karandjeff v. Cmty. Living Alliance Inc., UI Dec. Hearing No. 11611430MW (LIRC June 20, 2012); Holloway v. Mahler, supra, and the cases cited therein; In re Nestor Gutierrez, UI Dec. Hearing No. 00005766MD (LIRC July 19, 2002).

(14)( Back ) Krueger v. LIRC & Gen. Motors Assembly Div., No. 81-CV-559A (Wis. Cir. Ct. Rock Cnty. Dec. 3, 1982). See, also, Muller v. State, 94 Wis. 2d 450, 469, 289 N.W.2d 570 (1980)(when there are no circumstances to prevent or rebut the presumption, the law presumes that a reasonable person intends all the natural, probable, and usual consequences of his deliberate acts).

(15)( Back ) In re Leonard Miszewski, UI Dec. Hearing No. 12401605AP (LIRC Nov. 30, 2012).

(16)( Back ) See, e.g., In re Henry A Warner, UI Hearing No. S9100679MW (LIRC July 16, 1993).

(17)( Back ) The ALJ also stated that she found the employee's testimony "unreliable." This statement relates more to the content of the employee's testimony than the manner in which it was given, and, therefore, was disregarded.

(18)( Back ) The first week of a claimant's benefit year for which the claimant has timely applied and is otherwise eligible for regular benefits under ch. 108 is the claimant's waiting period for the benefit year. Wis. Stat. § 108.04(3).

(19)( Back ) See McCormick on Evidence § 359 at 1029 (3d ed. 1988).

(20)( Back ) Handbook for Measuring Unemployment Insurance Lower Authority Appeals Quality, Third Edition, U.S. Department of Labor, Employment and Training Administration, Office of Unemployment Insurance, March 2011, Appendix B: A Guide to Unemployment Insurance Benefit Appeals Principles and Procedures, pp. 4-5.

(21)( Back ) Id. at pp. 29-31. 

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