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


KELLY L ROLOFF, Claimant

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99002098BO


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 its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The claimant initiated an unemployment benefit claim in early 1999. He filed weekly unemployment claims for each of weeks 9 through 16 of 1999, the calendar period beginning February 21 and ending April 17. On each of those weekly claims, he was asked whether he had looked for work. On each claim, he indicated that he had done so. In a companion decision (case number 99002097), the appeal tribunal found that the claimant did not make a reasonable search for work during those weeks. The claimant did not appeal that decision.

The issue to be decided is whether the claimant concealed from the department any material facts relating to benefit eligibility when filing a benefit claim for weeks 9 through 16 of 1999 and if so, what benefit forfeiture should be imposed as a result.

The question of whether or not a claimant has made a reasonable search for work is material to his benefit eligibility because a worker who is required to make such a search, and does not, is ineligible for benefits during the period in which such a search is not made.

The claimant had no specific explanation as to why he had certified that he made a work search during the weeks in question. However, the claimant did appear to believe that he had complied with all of the requirements for benefit eligibility during the time in question. His belief was not reasonable, given the nature of his work search contacts, and his certifications did amount to a concealment of the fact that he had not made a reasonable work search. However, the claimant was somewhat confused as to what was required and as to how he should complete his claim forms and therefore any affirmative intent to conceal was minimal.

Under Wis. Stat. § 108.04(11)(a), if a claimant, in filing his application for benefits or claim for any week, conceals wages, a refusal of a job, or any other material fact relating to his eligibility for benefits, so much of any benefit payment as was paid because of such concealment shall be recovered by the department as an overpayment. The employe's false statement that he made a work search in the eight weeks at issue here was a material fact relating to his eligibility that he concealed. Wis. Stat. § 108.04(11)(b)2., provides that the department shall require the claimant to forfeit for each act of concealment not less than one nor more than four times the claimant's weekly benefit rate for the week for which the claim is made for any single act of concealment which results in an overpayment of 50 percent or more of that benefit rate.

The employe's weekly benefit rate was $109.00. In each week for which the employe filed a claim for benefits, and for which he falsely certified that he made a work search, he was overpaid benefits in the total amount of his weekly benefit rate of $109.00. Accordingly, the minimum forfeiture assessment for each act of concealment is one times the employe's weekly benefit rate. A benefit rate of $109.00, times eight acts of concealment, results in a minimum forfeiture that can be assessed in this case of $872.00. The maximum forfeiture that can be assessed is $3,488.00 (four times his weekly benefit rate for eight separate acts of concealment). Because the administrative law judge was persuaded that the employe's intent to conceal was minimal, the minimum forfeiture allowed under the law will be assessed in this case.

The commission therefore finds that in weeks 9 through 16 of 1999, the claimant concealed from the department a material fact relating to benefit eligibility, within the meaning of Wis. Stat. § 108.04(11)(a), and the claimant shall forfeit $872.00 in unemployment insurance benefits that become payable by May 14, 2005, within the meaning of Wis. Stat. § 108.04(11)(b)2.

DECISION

The decision of the administrative law judge is amended as to the amount of benefit forfeiture and, as amended, is affirmed. Accordingly, the claimant shall forfeit $872.00 in unemployment insurance benefits that become payable by May 14, 2005.

Dated and mailed August 12, 1999
rolofke.urr : 132 : 1 BR 330

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission has amended the forfeiture assessed by the administrative law judge to conform to the law. While the administrative law judge has discretion in setting the forfeiture amount that discretion is limited by the minimum and maximum forfeiture range required under the law. The minimum forfeiture, as noted in the commission's decision, is $872.00.

cc: GREGORY A FRIGO
BUREAU OF LEGAL AFFAIRS


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