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

DAVID T MC CARVILLE, Claimant

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00001461MD

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 was laid off from his employment during week 7 of 2000. He had never before filed for unemployment insurance. The company informed him to seek unemployment information from its human resources office. The information he received at the office was a copy of a 1996 poster which provides initial claim filing procedures. It indicates that "YOUR UNEMPLOYMENT CLAIM WILL BEGIN IN THE WEEK YOU FILE THE CLAIM." The claimant initiated a benefit claim on February 14, 2000 (week 8).

The claimant contended that there were exceptional circumstances for his failure to initiate a claim within week 7 of 2000. He offered the updated 1998 poster which adds the following to the above quotation, "TO AVOID ANY LOSS OF BENEFITS, APPLY THE FIRST WEEK YOU ARE UNEMPLOYED." The claimant maintained that he would have claimed within the week had the employer provided the current poster. He alleged that because the poster did not directly state that a failure to file the application within the week could result in a loss of benefit eligibility, he delayed his claim until week 8.

The commission finds that the claimant's explanation for failing to initiate a benefit claim in week 7 of 2000 does not constitute an exceptional circumstance justifying waiver of the notice requirements. The fact that the 1996 poster was phrased differently from the 1998 poster did not make the 1996 poster confusing or inadequate. The 1996 poster and 1998 poster do not contain identical language but both posters instruct an individual to file a benefit claim in the first week of partial or total unemployment. The 1996 poster was not insufficient or inadequate to apprise the claimant of the necessity to file in the first week in which he was unemployed. Therefore, the fact that the employer did not have the most recent poster did not justify the claimant's failure to timely initiate a benefit claim.

The commission therefore finds that in week 7 of 2000 the claimant failed to notify the department of his intention to initiate or to reactivate a benefit claim within the meaning of Wis. Stat. § 108.01(1) and Wis. Admin. Code Ch. DWD 129, and that the reason for such failure did not constitute an exceptional circumstance so as to permit a waiver of the notification requirement, within the meaning of that section and chapter.

The commission further finds that the claimant was paid benefits in the amount of $297.00 for week 7 of 2000, for which the claimant was not eligible and to which the claimant was not entitled, within the meaning of Wis. Stat. § 108.03(1).

The final issue to be decided is whether recovery of overpaid benefits must be waived.

Wisconsin Statute § 108.22(8)(c), provides that the department shall waive the recovery of overpaid benefits if the overpayment was the result of departmental error, and the overpayment did not result from the fault of the employe. Under Wis. Stat. § 108.02(10e)(a) and (b), department error is defined as an error made by the department in computing or paying benefits which results from a mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, or from misinformation provided to a employe by the department, on which the employe relied.

The overpayment in this case results from the commission's reversal of the appeal tribunal decision. Such reversal was not due to department error as defined in Wis. Stat. § 108.02(10e)(a) and (b). Rather, the commission has reached a different legal conclusion when applying the law to the facts found.

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c), because although the overpayment did not result from the fault of the employe as provided in Wis. Stat. § 108.04(13)(f), the overpayment was not the result of a department error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the claimant is ineligible for benefits in week 7 of 2000. He is required to repay the sum of $297.00 to the Unemployment Reserve Fund.

Dated and mailed May 26, 2000
mccarda.urr : 132 : 1 :  CP 360

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will withhold benefits due for future weeks of unemployment in order to offset overpayment of U.C. and other special benefit programs that are due to this state, another state or to the federal government.

Contact the Unemployment Compensation Division, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the overpayment.

 

MEMORANDUM OPINION

The commission did not consult with the administrative law judge regarding her impressions of witness credibility or demeanor. The commission's reversal is not based on a differing impression of witness credibility but upon reaching a different legal conclusion when applying the law to the facts.

cc: DIRECTOR GREGORY FRIGO
BUREAU OF LEGAL AFFAIRS

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