BRENDA R MORTENSEN, Claimant

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 claimant has worked a little over eight years as an assembler for the employer, a manufacturer of trucks and cars. She was laid off from March 14, 2005 (week 12) through April 8, 2005 (week 15). She filed an additional initial claim on March 14, 2005 and received benefits for weeks 12 of 2005 through week 15 of 2005. She returned to work in week 16 of 2005 at full-time light duty.

The issue to be decided is whether the claimant concealed from the department any material facts relating to benefit eligibility when filing a benefit claim for weeks 13 through 15 of 2005 and, if so, what benefit forfeiture should be imposed as a result.

The claimant was laid off on March 14, 2005. The claimant had surgery scheduled for March 21, 2005 (week 13); she could not do any work that week. Before she was laid off she asked her foreman if she should take sick leave for the time she was laid off or whether she should file for unemployment insurance payments. The claimant's foreman asked a benefit representative and later informed the claimant to collect unemployment. She had the surgery and was "unable to work and was unavailable for work" as that phrase is defined for unemployment insurance eligibility purposes for the period from week 13 through week 18 of 2005. In her mind, the only reason she was not working was because her employer had laid her off for a definite period. As she anticipated, when the layoff was over in week 16, she returned to work and worked full-time doing light duty work. She did not understand that in order to be eligible for unemployment insurance benefits, with her uncontrollable restrictions she had to be able to work in at least 15 percent of all the full-time suitable work with all the employers in her labor market area. She did not realize that the fact she could have worked full-time with her employer, (had she not been on layoff) was irrelevant. She received two copies of the claimant's handbook in 2005; she did not read them.

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 rebutable 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.

The commission is satisfied that the claimant did not intend to conceal her inability to work from the department. The claimant had been told to file for benefits by her foreman. The claimant did not understand, that as a result of her surgery and limitations, she was not able to perform at least 15 percent of the suitable work in her labor market. The claimant should have thought the situation over more carefully.

The commission therefore finds that in weeks 13 through 15 of 2005, the claimant did not intentionally conceal from the department her inability to perform full-time suitable work in her labor market area, within the meaning of Wis. Stat. § 108.04(11)(a). As a result there is no forfeiture imposed.

The decision of the administrative law judge is reversed. Accordingly, the claimant is not required to forfeit any future benefits otherwise payable.

Dated and mailed December 14, 2005
mortebr . urr : 145 : 1  BR 330

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

The commission discussed witness credibility and demeanor with the ALJ who held the hearing. He noted that the claimant bears the responsibility for accurately filling out her claims. Further he noted that she appeared at the hearing alone, and did not bring a co-worker or her foreman to back up her story. The ALJ also pointed out that the claimant agreed that she should have answered "no" to the question of whether she was able to work the week that she had her surgery. On the other hand, the ALJ considered this a "tough call" but based on her actions in week 13, in indicating she was able to work when she could not work at all, he did not believe she did not realize there was a question as to her availability. That being said, he did not think she looked like a dishonest person. Further, he noted that while the foreman told her to file for benefits, he did not tell her to report that she was able to work. The commission likewise considered this a close case, but the commission ultimately decided that the claimant did not intend to conceal relevant information from the department. The employee's testimony that she was following the instructions of her foreman was not disputed. In addition, the claimant did not have as much incentive to conceal anything because she could have filed for sickness benefits during this time. Since she had been instructed to file for unemployment, the commission concludes it likely that she was not thinking about her ability to work in general and simply concluded that the reason she was not working was because she had been laid off.

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

uploaded 2006/01/03