CHRISTINE L ASKI, Employee

SUN COUNTRY AIRLINES, Employer

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 it has reviewed the evidence submitted to the ALJ. Based on its review, the commission makes the following:

The employee exhausted her combined Wisconsin and Minnesota benefit claim in week 33 of 2003. The department notified her of her potential eligibility for TEUC. On August 23, 2003 the department sent the employee a Temporary Extended Unemployment Compensation Computation Form TEUC-707, which alerted the employee of her potential TEUC eligibility. The form states that TEUC is payable to individuals who:

Are not eligible for benefits under the unemployment insurance program of any other state or the federal government. IF YOU WORKED IN A STATE OTHER THAN WISCONSIN DURING THE PAST 18 MONTHS, YOU MUST CONTACT THE UI BENEFIT CENTER AT THE NUMBER LISTED ABOVE.

The employee had worked in Minnesota within 18 months of the date of the form. The employee began receiving TEUC and received such benefits in weeks 34 through 37 of 2003.

On September 18, 2003 (week 38), the department mailed the employee a TEUC-A computation (TEUC for displaced airline workers), setting forth the amount of TEUC-A available to her. That form stated that TEUC-A was payable to individuals who:

Are not eligible for benefits under the unemployment insurance programs of any other state or the federal government.

The employee received TEUC-A benefits in week 38 of 2003 through week 48 of 2003 in the amount of $2,816.00.

In order to be eligible for TEUC or TEUC-A, the employee cannot have eligibility for regular unemployment insurance benefits in any state. The employee was eligible for regular UI benefits in the State of Minnesota beginning in week 34 of 2003 and including weeks 38 through 48 of 2003.

The employee maintained that when she contacted the Minnesota UI agency in August she was told she did not qualify because she was $100.00 short in wages. However, after reviewing the employee's work employment history and wages, the commission agrees with the department that the employee was eligible to begin a benefit claim in Minnesota in week 34 of 2003. Minn. Stat. § 268.07, provides:

Subd. 2. Benefit account requirements and weekly unemployment benefit amount and maximum amount of unemployment benefits.
(a) To establish a benefit account, an applicant must have:

(1) high quarter wage credits of at least $ 1,000; and

(2) wage credits, in other than the high quarter, of at least $250.

(b) If an applicant has established a benefit account, the weekly unemployment benefit amount available during the benefit year shall be the higher of:

(1) 50 percent of the applicant's average weekly wage during the base period, to a maximum of 66-2/3 percent of the state's average weekly wage; or

(2) 50 percent of the applicant's average weekly wage during the high quarter, to a maximum of 45 percent of the state's average weekly wage.

The applicant's average weekly wage under clause (1) shall be computed by dividing the total wage credits by 52. The applicant's average weekly wage under clause (2) shall be computed by dividing the high quarter wage credits by 13.

(c) The state's maximum weekly unemployment benefit amount and an applicant's weekly unemployment benefit amount and maximum amount of unemployment benefits available shall be rounded down to the next lowest whole dollar. The state's maximum weekly benefit amount, computed in accordance with section 268.035, subdivision 23, shall apply to a benefit account established effective on or after the first Sunday in August. Once established, an applicant's weekly unemployment benefit amount shall not be affected by the first Sunday in August change in the state's maximum weekly unemployment benefit amount.

(d) The maximum amount of unemployment benefits available on any benefit account shall be the lower of:

(1) 33-1/3 percent of the applicant's total wage credits; or

(2) 26 times the applicant's weekly unemployment benefit amount.

The record does not reflect that prior to week 34 of 2003 the employee had an existing benefit account in Minnesota. As of week 34 of 2003 she met the benefit account requirements in Minnesota. The employee's base period would have consisted of the second quarter of 2002 to the first quarter of 2003. The employee had high quarter wage credits of $4,191.25 in the first quarter of 2003, and wage credits of $120.00, $162.50, and $1,870.00, in the fourth, third and second quarters of 2002, respectively. The employee had total base period wage credits of $6,343.75. Her maximum amount of benefits was $2,114.00, 33-1/3 percent of her total wage credits. Her weekly benefit amount was $161.00, her high quarter wage credits divided by 13. The interstate benefits inquiry screen reflects these maximum and weekly benefit amounts.

The commission therefore finds that as of week 38 of 2003, the employee was not an "exhaustee" and thus not eligible for TEUC-A, under section 4002(a) of Public Law 108-11 and section 202 of the Temporary Extended Unemployment Compensation Act of 2002.

The commission further finds that in weeks 38 through 48 of 2003, the employee was paid TEUC benefits of $2,816.00 for which she was not eligible, under section 4002(a) of Public Law 108-11 and section 202 of the Temporary Extended Unemployment Compensation Act of 2002.

The final issue to be decided is whether recovery of overpaid benefits must be waived. Wis. Stat. § 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 employee. Under Wis. Stat. § 108.02(10e)(a) and (b), departmental 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, by commission or omission, or from misinformation provided to a claimant by the department, on which the claimant relied. Under Wis. Stat. § 108.02(10), "department" is defined as the department of workforce development.

An unemployment insurance representative in Minnesota apparently misinformed the employee as to eligibility for benefits. However, that she was misinformed does not change the fact that she was not an exhaustee as that term is defined by federal law. Further, the Wisconsin department of workforce development did not err in paying the employee benefits. The TEUC Form-707 mailed to the employee on August 23 instructed the employee to contact the department if she worked in any other state in the last 18 months. The employee denied receiving the TEUC Form-707. However, even if true, and due to no fault on the part of the employee, the fact remains that the department mailed the form to her. Therefore, even if she did not receive the form, her receipt of TEUC benefits beginning in week 34 of 2003 was due to the fact that the department was not alerted to the employee's work in Minnesota at the time it began paying the employee TEUC benefits. Had the department been so alerted, the employee would not have been sent a TEUC-A computation and would not have received TEUC-A benefits.

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 employee as provided in Wis. Stat. § 108.04(13)(f), the overpayment was not the result of a departmental error. See Wis. Stat. § 108.22(8)(c)2.

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for TEUC-A as of week 38 of 2003. She is required to repay the amount of $2,816.00 to the Unemployment Reserve Fund.

Dated and mailed December 28, 2004
askichr . urr : 132 : 1 : BR 335.04

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

NOTE: The commission did not consult with the ALJ who presided at the hearing regarding witness credibility and demeanor. The commission's reversal is not based upon a differing assessment of witness credibility.

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will with hold benefits due for future weeks of unemployment in order to off set over payment of U.I. and other special benefit programs that are due to this state, an other state or to the federal government.

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

cc: Gregory Frigo

Appealed to Circuit Court.  Affirmed August 15, 2005.

[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]

uploaded 2005/01/04