State of Wisconsin

Labor and Industry Review Commission

 

 

Robert N Giampalo

Unemployment Insurance Decision

Employee

 

 

 

No Employer                        

 

Employer

Dated and Mailed:

 

 

Hearing No.15001932MD

November 19, 2015

 

 SEE ENCLOSURE AS TO TIME LIMIT AND PROCEDURES ON FURTHER APPEAL 

 

An administrative  law judge (ALJ) for the Division  of Unemployment Insurance of the Department of Workforce Development issued an appeal tribunal 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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

 

DECISION

 

The appeal tribunal decision is affirmed. Accordingly, the claimant is ineligible for benefits as of week 22 of 2015.

 

 

 

By the Commission:

 

 

 

Laurie R. McCallum, Chairperson

 

 

 

 

/s/

 

C. William Jordahl, Commissioner

 

 

 

 

/s/

 

David B. Falstad, Commissioner

 

 

 

 

 

 

 

Memorandum Opinion

The claimant opened a claim for unemployment benefits on May 25, 2015 (week 22). The claimant also receives social security disability income (SSDI) once a month paid on the fourth Wednesday of the month. The claimant received his monthly SSDI on or about May 27, 2015 (week 22).      ·

 

As of week 2 of 2014 (the week beginning January 5, 2014), a claimant is required to inform the department whether he or she is receiving social security disability benefits under 42 U.S.C Chapter 7, Subchapter II. The newly enacted Wisconsin statute, at Wis. Stat. § 108.04(2)(h), requires a claimant to provide this information when the claimant first files a claim for unemployment insurance (UI) benefits and during each subsequent week the claimant files for UI benefits. The weekly certification form now asks the claimant the following question: "Are you receiving any Disability Benefits from Social Security this week?" In week 22 of 2015, the claimant answered "No" to the above-referenced question.  In weeks 23 through 25 of 2015, the claimant answered "Yes" to the question.

 

Wis. Stat. § 108.04(12)(f)[1], provides the following:

 

(f) 1. Any individual who actually receives social security disability insurance benefits under 42 USC ch. 7 subch. II in a given week is ineligible for benefits paid or payable in that same week under this chapter.

 

2. Information that the department receives or acquires from the federal social security administration that an individual is receiving social security disability insurance benefits under 42 USC ch. 7 subch. II in a given week is considered conclusive, absent clear and convincing evidence that the information was erroneous.

 

The ALJ held that under Wis. Stat. § 108.04(12)(f) 1., the single monthly SSDI payment the claimant received disqualified him from unemployment benefits in each and every week of the month in which the payment is received.

 

The claimant asserts that he was denied benefits because he was disabled. However, four separate circuit courts[2] have held that of Wis. Stat. § 108.04(12)(f) constitutes a categorical denial to unemployment  benefits in any week of any month a claimant receives SSDI. Consistent with these rulings, the commission interprets this statute to disqualify the claimant from unemployment benefits in any week of any month the claimant receives his monthly SSDI payment. Therefore, the claimant is ineligible for unemployment benefits, pursuant to Wis. Stat. § 108.04(12)(f)l., as of week 22 of 2015.

 

___________________________________________________


Appealed to Circuit Court, Affirmed August 5, 2016.  [Summary of Circuit Court decision.]


[1]Wis. Stat. § 108.04(12)(f), along with Wis. Stat. § 108.04(2)(h), was enacted July 5, 2013, and first applied with respect to determinations issued or appealed on January 5, 2014. 2013 Wis. Act 36 § 238(9).

[2](DWD v. LIRC, Karolyn Bullock, Harris Webber Management, Case No. 14CV3249 (Wis. Cir. Ct. Dane Cnty. May 27, 2015); DWD v. LIRC, Kenton Morse, Riteway Bus Service, Case No. 14CV752 (Wis. Cir. Ct. Washington Cnty. July 7, 2015); DWD v. LIRC, Michael Plotz, A.N.S. Machine, LLC, Case No. 14CV308 (Wis. Cir. Ct. Marinette Cnty. August 11, 2015); DWD v. LIRC, Benny Nelms, Boys & Girls Club of Greater Milwaukee, Inc., and Milwaukee Public School, Case No. 14CV10615 (Wis. Cir. Ct Milwaukee Cnty. September 28, 2015).