BEFORE THE
STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

In the matter of the unemployment benefit claim of

DANA C GOIN, Claimant

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 89-200895 RL

On July 27, 1989, the Department of Industry, Labor and Human Relations, (hereafter, Department) issued an Initial Determination which held that the claimant concealed a material fact relating to his eligibility for benefits during the week ending July 1, 1989 (week 26) because he failed to report that he had been discharged by his most recent employer. The claimant timely appealed. On September 19, 1989, a hearing was held on this matter before an Administrative Law Judge. On September 22, 1989 the Administrative Law Judge issued his Appeal Tribunal Decision which found that the claimant concealed a material fact relating to his eligibility for benefits within the meaning of sec.108.04(11)(a) of the Statutes. Affirming the Department's Initial Determination, the Appeal Tribunal Decision required the claimant to forfeit benefits in the amount of $194.

The claimant timely petitioned the Commission for review of the Appeal Tribunal Decision. 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 for approximately three months as an over-the-road truck driver for a trucking business. His last day of work was on or about June 2, 1989 (week 22) and he was laid off by his employer for an indefinite period on June 5, 1989 (week 23). During the week ending June 24, 1989 (week 25), the claimant initiated a claim for unemployment compensation because no work had been made available to him by the trucking business. On June 26, 1989 (week 26), the claimant was notified by the trucking business that he was discharged. Believing he had been previously laid off however, the employe for the week ending July 1, 1989 (week 26), responded "no," to the question on his claim form which stated "For the week you are claiming, did you refuse work, quit or were you fired?"

The issue is whether the claimant concealed a material fact relating to his eligibility for benefits within the meaning of section 108.04(11)(a) of the Statutes by not disclosing that the employer had "discharged" him on June 26, 1989. The administrative law judge found that the claimant had concealed a material fact relating to his eligibility for benefits during week 26 because the employer had informed the employe that he was discharged for traveling with an unauthorized rider during that week. However, because the commission has concluded in Dana C. Goin v. North Central Trucking Corp., Hearing No. 89-200896 RL that the employment relationship was severed by the employer due to an indefinite layoff in week 23 of 1989, the claimant's response to the question concerning week 26 of 1989 was not incorrect nor a concealment of material fact relating to his eligibility.  It was reasonable for the employe to have believed that he had previously been laid off and therefore could not have been discharged in week 26.

Therefore, the Commission finds that the claimant did not conceal a material fact relating to his eligibility for benefits during week 26 of 1989 within the meaning of section 108.04(11)(a) of the Statutes.

The Commission further finds that the claimant is not required to forfeit benefits in the amount of $194 which are otherwise payable to him during the period ending July 22,nd 1995.

DECISION

The Appeal Tribunal Decision is reversed. Accordingly, the claimant is not required to forfeit benefits in the amount of $194 which are otherwise payable to him during the period ending July 22nd, 1995.

Dated and mailed October 29, 1990
135 : CD0529  BR 330

/s/ Kevin C. Potter, Chairman

Carl W. Thompson, Commissioner

/s/ Pamela I. Anderson, Commissioner

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