CANDACE K. PITTS, Claimant

On December 21, 1994, the Department of Industry, Labor and Human Relations (department) issued an initial determination. which held that the claimant concealed from the department work performed and/or wages earned in or paid for the following weeks: (weeks 36 through 52 of 1993, weeks 2 through 14 of 1994, weeks 18 through 24 of 1994.) As a result, the employe was ordered to forfeit $6,863 in unemployment benefits that became payable to her by December 16, 2000. The claimant filed an appeal of the adverse initial determination and a hearing was held before an administrative law judge. On January 27, 1995, the administrative law judge issued his appeal tribunal decision, reversing the department's initial determination, finding that the claimant did not conceal from the department work performed and/or wages earned and consequently assessed no forfeiture against the claimant. The department timely petitioned the commission for review of the appeal tribunal decision.

Based on the applicable law, records and evidence in this case, and after consultation with the administrative law judge, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The claimant worked for approximately five years as a school teacher for the Dodgeville School District. During the period in question, the employe was also employed as a part time telephone operator for Land's End. In the week ending June 19, 1993, (week 25), the employe initiated a benefit claim.

At the time the employe initiated her claim she listed both the Dodgeville School District and Land's End as her base period employers. However, for the weeks claimed, the claimant reported only her work as an operator for Land's End and the wages earned from that employer. Even though the claimant was still under contract with the Dodgeville School District, she did not report either her teaching employment or wages earned from the school district during the weeks in question.

Based only on her Land's End employment, the department paid the claimant unemployment benefits for each relevant week, totaling 37 weeks. Had the claimant's additional unreported earnings from her teaching employment been added to her other reported earnings, the claimant would have been ineligible for benefits in each of the 37 weeks. The claimant's failure to report her earnings as a teacher resulted in a total overpayment of $4,583. (1)

The issue for review is whether the claimant concealed from the department work performed and/or wages earned in the above referenced weeks and, if so, the appropriate forfeiture assessment for such failure.

Section 108.04 (11), Stats., titled fraudulent claims, provides:

"(a) If a claimant, in filing his or her application of benefits for any week, conceals any part of his or her wages earned in or paid or payable for that week or conceals his or her refusal in that week of a job offer or any other material factor relating to his or her eligibility, so much of any benefit payment as was paid because of such concealment shall be recovered by the department as an overpayment.

(b) The department shall also require any claimant to forfeit for any act of concealment the following amount of benefits . . . ."

Concealment consists of a suppression of a fact and implies a purpose and design. Kamuchey v. Trzensniewski, 8 Wis. 2d 94, 99 (1959) citing 23 Am Jur. Fraud and Deceit, Paragraph 851, Section 77. A forfeiture of benefits may not be imposed against a claimant who makes an honest mistake, but only as a wilful act of concealment, not due to ignorance or lack of knowledge. There must be an intent to receive benefits to which the individual knows he or she is not entitled. Direct evidence of intent is not necessary. Intent may be inferred from acts, words and statements. Further there is a rebuttal presumption that a person intends the natural and probable consequences of deliberate acts. See, Sue A. Krueger v. LIRC and General Motors Assembly Division, Rock County Case No. 81-CV-559, 12/3/82.

According to the claimant, her failure to report her teaching employment and earnings was based on her erroneous understanding that the department was aware of her teaching employment and annual salary when she initially opened her claim for benefits. Consequently, the claimant asserts that she believed she was not required to report her income from teaching on any of her weekly claim cards, even though the claimant was paid by the school district, semi-monthly, on a annual basis. The claimant testified that she mistakenly believed that she was only required to report her hourly wages at Land's End since they varied from week to week and incorrectly assumed that her semi-monthly salary as a teacher was being taken into account by the department.

The department contends in its petition for commission review, that the claimant was apprised on several occasions of her obligation to report all wages from all employers. Indeed, when the claimant filed her claim for benefits, she was given a Handbook for Claimants.

The department cites from the Handbook for Claimants, at page 5, for an explanation of how to complete question 4 on the claim form which relates to reporting work and wages while claiming benefits. The instruction specifically states: "If you work for more than one employer in a week, call your local office for instruction on how to report your wages on your weekly claim car:." Beginning in April 1994, the claimant began filing her claims through the telephone weekly claim system. When claimants begin using the telephone claim system, they are routinely given a pamphlet which explains the telephone claiming process. This pamphlet also includes an explanation on how to report all wages separately while claiming benefits.

When determining whether the claimant concealed her employment and wages from the department, the administrative law judge found that conceal is defined as "keep from another's knowledge or keep secret." The department's Operations Manual defines "concealment" in a similar manner; "concealment" is defined as "an intentional act of keeping something a secret or an act of hiding something." See, Unemployment Operations Manual, Volume 4, Part 2, Chapter 3, page 1. The administrative law judge concluded that the employe's assumption that she did not need to report part of her earnings was an honest one and that her mistake was made in good faith.

However, the commission is not persuaded that the claimant's failure to report wages were mistakes made in good faith. Beginning in April 1994, the claimant repeatedly ignored telephone instructions to report all of her wages separately. She also ignored the claimants' handbook's instruction on how to report wages on weekly claim cards. If the claimant was confused she should have sought clarification before answering the question about employment and wages each week. A reasonable person filing for unemployment benefits would have clarified her need to report her teaching employment and her wages after filing her initial claim instead of ignoring the Handbook for Claimants and the telephone script's instructions regarding reporting employment and wages. Workers who file claims for unemployment benefits are charged with a high degree of responsibility for correctly reporting all wages for the week or weeks for which they claim to be unemployed. Payments are made to workers solely on the basis of their own statements. Here, the commission believes the question on the claim card regarding whether the claimant worked and earned wages for the specific week being claimed is simple and straightforward and not easily susceptible to misinterpretation. Under these circumstances the commission concludes that the claimant did not meet her responsibility of correctly and accurately reporting work performed and wages earned. The claimant's failure to report work performed and wages earned from the school district resulted in a payment of benefits to which the claimant was not entitled. The commission therefore concludes that a forfeiture assessment is appropriate.

The commission therefore finds that for weeks 36 through 52 of 1993, weeks 2 through 14 of 1994, weeks 18 through 24 of 1994, the claimant concealed from the department work performed and/or wages earned or paid or payable for those weeks within the meaning of sec. 108.04 (11)(a), Stats., and that an appropriate forfeiture shall be assessed under sec. 108.04 (11)(b), Stats.

The decision of the appeal tribunal decision is reversed. Accordingly, the claimant concealed from the department work performed and/or wages earned or paid or payable for weeks 36 through 52 of 1993, weeks 2 through 14 of 1994, and weeks 18 through 24 of 1994. A forfeiture shall be assessed against the employe within the meaning of sec. 108.04 (11)(b), Stats. This matter however is remanded to the department for recalculation of the claimant's forfeiture assessment consistent with this commission decision and for any further action deemed necessary by the department.

Dated and mailed May 25, 1995
pittsca . urr : 135 : 8   BR 330

/s/ Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

MEMORANDUM OPINION

The administrative law judge indicated during the credibility conference with the commission that the claimant appeared candid and forthright and that her testimony and demeanor were unassuming. The administrative law judge indicated that the claimant did not reveal any specific body language or present any artful description of what she had done. The administrative law judge concluded the employe truly believed that her employment and wages from the school district had been taken care of by the school district and made known to the department.

As noted in the decision there must be an intent to receive benefits to which the claimant knows he or she is not entitled. Direct evidence of intent is not necessary and intent may be inferred from acts, words and statements. Further, there is a rebuttable presumption that a person intends the nature and probable consequences of deliberate acts. The commission is satisfied that the claimant here intended the probable consequences of her failure to report her employment and wages earned from the Dodgeville School District. The commission cannot reconcile the fact that the claimant originally listed the Dodgeville School District as one of her base period employers when she initiated her claim for benefits but then failed 37 times to report this employment and wages, despite both written and verbal instructions to contact the department and/or list all employment and wages from all employers for each specific week being claimed. As a result, the commission reverses the appeal tribunal decision concluding the claimant concealed her-employment and wages from the Dodgeville School District during the weeks in question.

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(1)( Back ) The overpayment was assessed in a separate initial determination and was not appealed by the claimant.

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