PHOENIX P PHIMMASENE, 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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own, except that it makes the following modifications:
The decision of the administrative law judge, as modified, is affirmed. Accordingly, the claimant is ineligible for benefits beginning in week 8 of 2010 and continuing until such time as the claimant meets the requirements under EUC08. The claimant is required to repay the sum of $10,959.00 to the Unemployment Reserve Fund.
Dated and Mailed September 15, 2011
BY THE COMMISSION:
/s/ Robert Glaser, Chairperson
/s/ Ann L. Crump, Commissioner
/s/ Laurie R. McCallum, Commissioner
The claimant has petitioned for commission review of the adverse appeal tribunal decision which found that the claimant was not an exhaustee for EUC08 purposes and was required to repay erroneously paid benefits. The claimant argues that the department has failed to follow the federal repayment provisions regarding EUC08 benefits that differ substantially from the state law provision. Specially, the claimant argues that the state waiver provision does not have an "equity and good conscience" component. However, both the federal and state provision require, in order to waive recovery of erroneously paid benefits, that the claimant was without fault. The clamant here was not without fault. The department has a mechanism in place to determine whether a clamant may be eligible for benefits in another state and therefore ineligible for EUC08 benefits. The department sends out a Form EUC-707 at the time an individual becomes potentially eligible for EUC08. (1) That form states, in bold lettering,
If you have worked in another state within the past 18 months or if you have filed for Emergency Unemployment Compensation (EUC) in another state since July 2008, you must contact a claim specialist at the number above within 14 days. If you are eligible for a regular claim in another state or have EUC benefits in another state, you may not be eligible for EUC in Wisconsin. Call even if you have previously reported your work in another state during your claim.
The claimant was not warranted in disregarding the directive to contact a claim specialist to report his out-of-state work based on prior conversations with the department given that he was instructed to "Call even if you have previously reported your work in another state during your claim."
The commission also rejects the assertion that the claimant did not receive adequate notice of the issues to be addressed at the hearing. The hearing notice did contain the statutory reference for the state waiver provision. However, it also referenced PL 110-252.
The claimant further argues that the department violated federal law by halting payment of EUC08 benefits before a determination has been made, notice thereof, and an opportunity for a fair hearing has been given to the individual and the decision becomes final. The commission disagrees.
Public Law 110-252 § 4005(c) provides:
(c) RECOVERY BY STATE AGENCY.-
(1) IN GENERAL.-The State agency may recover the amount to be repaid, or any part thereof, by deductions from any emergency unemployment compensation payable to such individual under this title or from any unemployment compensation payable to such individual under any State or Federal unemployment compensation law administered by the State agency or under any other State or Federal law administered by the State agency which provides for the payment of any assistance or allowance with respect to any week of unemployment, during the 3-year period after the date such individuals received the payment of the emergency unemployment compensation to which they were not entitled, except that no single deduction may exceed 50 percent of the weekly benefit amount from which such deduction is made.
(2) OPPORTUNITY FOR HEARING.-No repayment shall be required, and no deduction shall be made, until a determination has been made, notice thereof and an opportunity for a fair hearing has been given to the individual, and the determination has become final.
The claimant argues that the department stopped paying the claimant EUC08 benefits prior to a hearing before an ALJ. However, § 4005(c) does not require the department to keep paying the claimant EUC08 until after a hearing has been held and a final determination has been made. Rather, § 4005(c) prohibits the state from attempting to recover erroneously paid EUC benefits and making deductions to state or federal benefits that would be otherwise payable prior to hearing and a final determination. There is nothing in the record to indicate that the department has been attempting to recover the overpayment, or reduced benefits otherwise payable, prior to the hearing or prior to a final decision on whether repayment is required.
phimmph . usd : 132 : 1
cc: Attorney Victor Forberger
Appealed to Circuit Court. Affirmed July 10, 2012.
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(1)( Back ) In this way, the department's handling of EUC cases differs from the way it handled TEUC cases. In TEUC cases the department did not have in place a mechanism to determine whether individuals were exhaustees.