LEONARD A MISZEWSKI, 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 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 employee had his sister call the department for him to make his weekly certification for benefits for week 15 of 2012, because the employee's own phone had been shut off. He told his sister that he was scheduled to go back to work on Sunday, April 15, 2012 (week 16). The employee's sister called the department on Sunday, April 15, 2012 on his behalf, and answered "no" to the question "did you work?" during the week of April 8 through April 14 (week 15).
The employee, however, did work in week 15. He was called back to work by his employer a week earlier than he expected. He worked 32 hours in week 15 and his gross pay was $300.80.
The employee made no claim for week 16 (week ending April 21, 2012). On April 25, 2012 the department mailed a letter to the employee notifying him of the possible error in the payment of his benefits for week 15, and giving him an opportunity to respond. The employee did not respond, and two determinations were issued-first, that he was overpaid $171, and second, that he should forfeit $513 in benefits payable during the six-year period ending April 28, 2018, because in his weekly certification to the department he had concealed work and wages earned in, paid or payable for week 15. Wis. Stat. § 108.04(11).
The appeal tribunal affirmed both determinations. The employee's petition for review challenges only the forfeiture determination.
The employee maintains that he simply forgot to tell his sister that he was called back to work a week earlier than he expected, and did not realize his mistake until he received correspondence from the department about it.
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 against one who engages in a willful 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 rebuttable 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. A concealment finding, however, must be supported by clear and convincing evidence.(1) Tracy L. Cunningham, UI Dec. Hearing No. 05606263MW (LIRC Feb. 27, 2006).
There is no evidence in this case that the employee knew, at the time he asked his sister to certify that he did not work in week 15, that such a certification would be false. Once the employee was called back to work, it is plausible that he simply forgot to notify her. There is no evidence of any act or statement by the employee from which fraud can be inferred. The record lacks clear and convincing evidence of deliberate concealment.
The commission therefore finds that in week 15 of 2012 the claimant did not conceal a material fact relating to his eligibility for benefits within the meaning of Wis. Stat. § 108.04(11).
The decision of the administrative law judge is reversed. There is no concealment, and no forfeiture of benefits in this case.
Dated and Mailed November 30, 2012
BY THE COMMISSION:
/s/ Robert Glaser, Chairperson
/s/ Ann L. Crump, Commissioner
/s/ Laurie R. McCallum, Commissioner
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(1)( Back ) "In civil actions, where fraud, crime, criminal conduct or conspiracy is alleged, the burden rests upon him who so charges, to establish the proof of such allegations by clear and satisfactory evidence, Max L. Bloom Company v. United States C. Company, 191 Wis. 524, 210 N.W. 689; Muska v. Apel, 203 Wis. 389, 232 N.W. 593; or by the clear and satisfactory evidence to a reasonable certainty. Lange v. Heckel, 171 Wis. 59, 175 N.W. 788, or by clear, satisfactory and convincing evidence." Ziegler v. Hustisford Farmers Mut. Ins. Co., 238 Wis. 238, 298 N.W. 610 (1941).