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

HEATHER M ENGEL, Employe

IGL ENTERPRISES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99201408EC

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, except that it makes the following modifications:

Paragraph 12 of the appeal tribunal's Findings of Fact and Conclusions of Law is deleted, and the following is substituted therefor:

It remains the case, however, that the employe is required to repay unemployment insurance only for week 26 of 1999 ($124). By operation of Wis. Admin. Code § DWD 128.01 (1) a claimant may not be disqualified for any week for which a benefit check has been mailed prior to the date of an initial determination resolving an eligibility issue under that provision. The commission includes appeal tribunal and commission decisions within this prohibition; in the present case, the appeal tribunal decision is the first decision resolving the employe's ability to work and availability for work in weeks 26 - 30. There is one exception, Wis. Admin. Code § DWD 128.01 (3), which essentially states that the department may retroactively disqualify a claimant on these grounds, in any week for which the claimant knowingly makes a false statement or conceals or misrepresents any information pertaining to his or her ability to work or availability for work. In a related decision, the Department of Workforce Development held that the employe had concealed a failure to accept an offer of work during week 26 of 1999. For that week, therefore, the employe may retroactively be disqualified from unemployment insurance eligibility on "able and available" grounds. In weeks 27 - 30, however, the employe did not knowingly make a false statement or conceal or misrepresent any information pertaining to her ability to work or availability for work.

It is therefore found that the employe was paid benefits in the amount of $124, for which she was ineligible and to which she was entitled, within the meaning of Wis. Stat. § 108.03 (1), and that that amount must be repaid to the department because it was not the result of the department error within the meaning of Wis. Stat. § § 108.22 (8)(a) and (c). There is no overpayment with respect to weeks 27 - 30.

DECISION

The decision of the administrative law judge, as modified, is affirmed. Accordingly, the employe is ineligible for unemployment benefits in week 26 of 1999. There is no overpayment with respect to weeks 27 - 30. She is required to repay the sum of $124 to the Unemployment Reserve Fund.

Dated and mailed February 10, 2000
engelhe.umd : 105 : 3  BR 325

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

cc: EGL ENTERPRISES INC

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