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


CHAD J SEVERSON, Claimant

TRADE ACT DECISION
Hearing No. 99004206LX


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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employe's request for setting aside of his prior benefit year is denied. The benefit year which was established based on the initial claim filed in January of 1998 remains in effect.

Dated and mailed February 9, 2000
severch2.tsd : 110 : CP 395

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

This case concerns claimant Chad J. Severson's challenge to a decision that he will not be allowed to withdraw his claim for unemployment benefits he filed in January 1998 and have the benefit year which was established at that time set aside. An initial determination so held, and following a hearing that initial determination was affirmed by an administrative law judge. The claimant has petitioned for commission review of that decision.

In his petition for review, the claimant states:

"I am writing you today to appeal my tribunal decision...on my request to set aside the benefit year of January 1998. On the basis of a logical extension on the TRA like unemployment would do for the final month of a calendar quarter.

"The January 1998 lay-off was for a normal slow period in the brewing industry. I would like to drop this week so I can receive benefits do to the plant closing"

The claimant's reference to a week of unemployment in January 1998 which he would like to drop, appears to have to do with the fact that the claimant initiated his claim for unemployment benefits in January, 1998 (when he was laid off from his job with Stroh Brewery for one week), and the fact that he would like to be able to withdraw his claim for that week and have the benefit year which was then established, be set aside. Claimant would like to be able to have his benefit rate determined as it would have been if he had first initiated his benefit claim when he was laid off again in August, 1998.

The meaning of the claimant's assertion, that "[o]n the basis of a logical extension on the TRA like unemployment would do for the final month of a calendar quarter", is not clear, but it appears to have something to do with the Department rule, discussed by the administrative law judge in her decision, which allows a benefit year to be set aside even if benefit payments have already been made, when the claim was initiated in the last month of a calendar quarter. See, Wis. Admin. Code Ch. DWD 129.04(2)4.

As the administrative law judge explained, this rule is not applicable. The benefit claim which claimant seeks to withdraw is the one he filed in January, 1998, which of course is the first month of a calendar quarter.

The situation in which the claimant finds himself is not uncommon. A person may initiate a claim for benefits, which results in the establishment of a "benefit year" entitlement with a fixed benefit rate computed based on the person's past earnings as of that point, and the person may then end up returning to work after drawing less than their full entitlement for that benefit year. Later, after the person has lost their employment again and needs to reactivate their claim, they may note that if their benefit rate could be re-computed at that time, based on their then-current past earnings, there would be a higher benefit rate.

In claimant's case, there is an additional factor which claimant obviously believes is one which makes his request more compelling. An initial determination was issued in July, 1999 which stated that the applicable benefit rate which would be applicable for TRA benefits he could be paid upon the expiration of his unemployment benefits, would be $297. Claimant and his wife made certain plans for the future based on budgeting using that amount. However, the July, 1999 initial determination was in error, and in October, 1999, an amended initial determination was issued which corrected the error to show that the applicable benefit rate which would be applicable for TRA benefits he could be paid upon the expiration of his unemployment benefits, would be $176. (1)

The commission appreciates that if the claimant's request to set aside his benefit year and have a different benefit year established could be granted, it would be to his financial benefit. However, the unemployment insurance system is based on determinations of overall benefit entitlements, which can be received during an ensuing benefit year, and which are figured when a claim is initiated. Procedures for figuring claimant entitlements, as well as "charging" to the unemployment accounts of employers, depend on this system. While there are provisions in the statutes and administrative rules which allow for such re-computations of benefit years in certain situations, these situations are specifically defined by statute and rule, and they are limited. As the administrative law judge's decision explains, none of those situations are present here.

The commission acknowledges, that it is unfortunate that an erroneous determination was issued in July, 1999 which misstated what claimant could expect in terms of the level of TRA benefits he might be receiving. However, that does not provide a basis for setting aside the benefit year that was established in January, 1998 when claimant initiated his claim for benefits. Wis. Admin. Code Ch. DWD 129.04(2)2. allows the set-aside of a benefit year, even when benefits have been paid based on it, where "the department makes an error relating to the claimant's establishing of a benefit year". This is intended to address situations in which the department makes an error when it sets up a benefit year at the time of the initiation of a claim. However, the erroneous information claimant was provided in July, 1999 as to the level of TRA benefits he would be entitled to, was not an error relating to the establishing of claimant's benefit year in January, 1998.

For these reasons, the claimant's request to withdraw the claim he initiated in January, 1998, and to have his benefit year set-aside and a new benefit year established based on different "base period" quarters, cannot be granted.


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Footnotes:

(1)( Back ) The reasons that this amended determination was correct, are explained in a separate commission decision issued this date. Chad J. Severson, Hrg. No. 99004205.