Wisconsin Labor and Industry Review Commission --
Summary of Wisconsin Court Decision relating to Unemployment Insurance

Subject: Mikhail Vaserman v. LIRC, Case No. 12-CV-13591 (Wis. Cir. Ct. Milwaukee Co., September 4, 2013)

Digest code: BR 338 - Qualifying weeks, end of base period, start of new benefit year - BR 335.02 - Overpayment - Waiver granted - 'dept. error' - mistake of fact; PC 769 Judicial Review, Miscellaneous - no default against LIRC

The commission's decision concluded that the employee was an exhaustee for the purposes of emergency unemployment compensation (EUC) under the Supplemental Appropriations Act of 2008 (EUC Act). The commission also concluded that -- having erroneously overpaid EUC benefits the weekly rate of $335 for week 51 2011 through week 3 of 2012 -- the department subsequently (and correctly) determined the weekly rate to be have been $189. The commission waived the resulting overpayment.

The pro se employee appealed to court, arguing that the commission erred in concluding that he was an "exhaustee" and that the commission miscalculated his benefits for weeks 51 of 2011 through week 3 of 2012. He also raised a variety of procedural issues.

HELD: Affirmed.

The court first held that "due weight" deference applied to the commission's legal conclusions both (1) that the employee was an "exhaustee" under the EUC Act and (2) as to the amounts due him in for week 51 2011 through week 3 of 2012. The court rejected the commission's argument for "great weight" deference, holding that the commission did not have longstanding experience with the Supplemental Appropriations Act of 2008 and noting that the commission relied on a UIPL to support its interpretation because the Act did not "provide specifics about administering benefits."
Turning to the merits, the court looked at the definition of "exhaustee" under both the federal EUC Act and state extended benefits statute (Wis. Stat. § 108.141). Citing the testimony of a department witness that the employee had received all of his regular benefits for his 2011 benefit year -- his most recent benefit year -- the court held the commission properly concluded that the employee was an exhaustee.

The court next considered the commission's legal conclusion that, upon exhausting his benefits for the 2011 benefit year, the employee was entitled to EUC benefits at the weekly rate of $189 tied to an earlier 2008 benefit year because the employee still had Tier 3 EUC benefits that "carried-over" from the 2008 benefit year.  The court concluded the commission's reasonably interpreted § 4001(d)(1) of the EUC Act to reach that conclusion, and that the commission's interpretation was supported by UIPL 23-08, change 1.  Because the court could not find a more reasonable interpretation of § 4001(d)(1), it affirmed the commission's legal conclusion that the 2008 benefit year rate of $189 applied to the employee's remaining "carry-over" EUC benefits from the 2008 benefit year.

The court also rejected several other arguments raised by the employee, including a claim that he had been denied a fair hearing before the first ALJ who heard his claim. On that issue, the court noted that the commission had ordered rehearing before another ALJ who conducted a thorough hearing.

Finally, the court denied the employee's motion for judgment in his favor because the commission's answer and brief were filed late. The court noted that both documents were in fact filed on time, that Ellis v. DOA, 2011 WI App 67, ¶22, 333 Wis. 2d 228 suggests that default judgment against LIRC for a late answer is inappropriate anyway, and that the court has the discretion to accept late briefs.

Please note that this is a summary prepared by staff of the commission, not a verbatim reproduction of the court decision.

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