TRACY L CUNNINGHAM, 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 by the Department of Workforce Development.

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:

The claimant initiated a valid new claim for benefits in week 10 of 1999, the calendar week ending March 6. She thereafter claimed benefits for weeks 15 through 30 of 1999, the calendar weeks ending April 10 through July 24. The employee worked and earned wages during those weeks, but failed to report either working or earning wages.

Wisconsin Stat. § 108.04(11)(b) provides that a worker who conceals information from the department may be required to forfeit future benefits in an amount equal to up to four times his or her weekly benefit rate. Each week constitutes a separate act. Concealment may be found when a worker intentionally withholds information from the department.

A worker owes a high degree of care to ensure that information is completely and accurately reported to the department. The payment of benefits is calculated, in part, upon representations of benefit claimants. A concealment finding must be supported by clear and convincing evidence.

The claimant testified she worked for the employer, but was uncertain as to when she worked there or how much she made. The claimant was shown a UCF-7922 Wage/Earnings Audit report dated October 11, 1999. The employer reported that she earned wages from $97.50 up to $266.83 in each of weeks 15 through 30 of 1999. The claimant agreed that she worked part-time for the employer. She did not deny working and claiming benefits at the same time, but testified that she "must have misunderstood the whole concept of collecting benefits." She testified that she thought if she worked part-time and not full-time she could still collect benefits. She testified that she did not answer "yes" to question 4 on her weekly claim, specifically "DID YOU WORK?" She thought that if she was working part-time then she did not have to answer yes to that question. She "figured it wasn't full-time, so. . ." The claimant agreed she had two prior findings of concealment, but testified she did not specifically remember what was concealed. Further, she testified that she did not call the department to ask if she should be reporting the part-time work because she "just wasn't thinking." She testified she knew that was her fault.

The commission finds that the claimant worked and earned wages as specified in Exhibit 1. In this case, the claimant agreed that she worked; she simply did not remember exactly when she worked or how much she earned. She did not testify she never claimed benefits during the time she worked part-time for the employer. Rather, she agreed she was working part-time and not reporting her wages. While she did not remember the exact amount of wages she earned, the commission considers Exhibit 1 to be the best evidence of the wages earned by the claimant. The commission notes that the claimant failed to appear at a hearing scheduled for December 15, 2005, on the wages issue. As such, the initial determination, finding that the claimant worked and earned wages in weeks 15 through 30 of 1999, is a final decision. Further, prior to the December 15, 2005 hearing, the claimant had repaid the wages at issue in those weeks. The commission concludes that the evidence is sufficient to establish that the claimant worked and earned wages in weeks 15 through 30 of 1999, resulting in an overpayment of benefits in the amount of $1,585.

The commission therefore finds that in weeks 15 through 30 of 1999, the claimant concealed work performed and wages earned, within the meaning of Wis. Stat. § 108.04(11)(b).

The claimant had a weekly benefit rate of $111. Further, the claimant had two prior forfeitures. The claimant failed to report her wages in 16 weeks when she was filing for benefits. In only one week (week 15 of 1999), was the claimant's overpayment less than 50 percent of her weekly benefit rate. As such, the commission agrees with the initial determination that a forfeiture of three times her weekly benefit rate ($333) for each of the 16 weeks that she concealed wages from the department is appropriate.

The decision of the administrative law judge is reversed. Accordingly, the claimant is required to forfeit benefits in the amount of $5,328 that become payable during the six-year period that ended February 4, 2006. Since this date has already passed this decision will have no effect on any future benefit claims the employee may make. While the employee did file for benefits in week 31 through 35 of 2005, an unrelated initial determination found the employee was ineligible for those weeks.

Dated and mailed February 27, 2006
cunnitr . urr : 145 : 4   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 indicated that her testimony was not credible. The commission agrees with the ALJ's credibility assessment.

The department argues that the employee did not establish that her failure to file a timely appeal was for a reason beyond her control. The employee alleged that she did not receive the initial determination and as such her appeal was late for a reason beyond her control. If the employee did not receive the initial determination due to, for example, postal error, the commission would conclude that the employee's appeal was late for a reason beyond her control. If the employee had not received the initial determination because, for example, she moved without informing the department, this would not be a reason beyond her control. In this case, not only would the employee's failure to receive the initial determination, if established, have to be the result of department or postal error, or some other reason beyond her control, but the employee would have to establish that she was not aware that she would be receiving the initial determination. The employee was sent another initial determination on the same day informing her that she had an overpayment because of her failure to report the wages. This initial determination specifically informed the employee that another initial determination would probably follow. Department records indicate that this employee had two prior forfeitures, so it was very likely she would be aware of how this process works. The commission would generally remand for a hearing on the issue of the late appeal, in particular in a case where it seems so unlikely that the employee did not receive the initial determination, but as a hearing on the merits had already been held in this case, the commission proceeded to review of the merits.

cc: Daniel J. LaRocque

[Ed. Note: This decision is reproduced here as affected by a subsequent amended decision issued by the commission to correct a typographical error in the original.]

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