STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

JAMEY M FISHER, Claimant

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 96200121EC

An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Industry, Labor and Human Relations 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 the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The claimant has worked for a little over one year as a roofer for a roofing contracting business. During the week ending December 9, 1995 (week 49), he was partially unemployed. He initiated a benefit claim for unemployment in that week establishing a benefit year beginning in week 49 of 1995. He received benefits in the amount of $18, which were applied to a preexisting forfeiture balance. Thereafter, the claimant was again employed full-time. On January 8, 1996 (week 2), the claimant was laid off on a more permanent basis. On January 8, 1996, the claimant made a voluntary written request to have the benefit year he established in week 49 of 1995 set aside in favor of a benefit year beginning on January 8. Doing so would entitle him to weekly benefits of $190 instead of $124.

The issue to be decided is whether the claimant has met the conditions permitting set aside of his benefit year.

Under sec. 108.06(2)(d), Stats., the department shall set aside a benefit year upon voluntary written request of a claimant provided that no benefits have been paid the claimant and the claimant's benefit eligibility is not suspended at the time the department acts upon the request. If benefits have been paid or the claimant's eligibility suspended, the department may set aside the benefit year pursuant to department rules which set forth exceptional circumstances permitting such set aside.

In this case, the claimant has not satisfied the conditions necessary to require mandatory set aside of his benefit year. The claimant was paid benefits in the amount of $18 which were applied against his forfeiture. While the claimant did not actually physically receive that money, the commission has previously held that benefits used to satisfy a forfeiture are considered paid to the claimant. See Kimberly L. Turrentine v. American Society for Quality Control, Inc., LIRC decision, September 15, 1994.

Chapter ILHR 129, Wis. Admin. Code sets forth circumstances permitting benefit year set aside when the conditions contained in sec. 108.06(2)(d), Stats., have not been met. Prior to January 6, 1996, sec. ILHR 129.04(2)(a)1.-3, Wis. Admin. Code allowed set aside if the department terminated coverage of an employer, the department made an error relating to the claimant's establishing of a benefit year, or the wage data used by the department was erroneous. The Department revised ch. ILHR 129(2)(a), Wis. Admin. Code with respect to the criteria used to determine whether a benefit year could be set aside, effective with benefit set aside requests made on or after January 6, 1996. Revised sec. ILHR 129.04(2)(a), Wis. Admin. Code retains the three conditions listed above and further permits benefit year set aside if:

4. The claimant elects alternative filing because the claimant's benefit year was established in the last month of a calendar quarter and benefits were paid to the claimant prior to the department advising the claimant of the choice of alternative filing.

Section ILHR 129.04(2)(a)4., Wis. Admin. Code applies to benefit years established in the last month of a calendar quarter when benefits have been paid prior to the department giving the claimant filing alternatives. Filing alternatives are given by the department only to claimants who have attempted to establish a benefit year in the last two weeks of a calendar quarter and who would have a higher weekly benefit amount or maximum benefit amount if they waited until the next calendar quarter to establish a benefit year. Although sec. ILHR 129.04(2)(a)4., Wis. Admin. Code, does not expand the department's policy of giving alternatives only to those claimants who attempt to establish a benefit year within the last two weeks of a calendar quarter, this new condition for setting aside a benefit year must also be applied to benefit years established in the first two weeks of the last calendar month of a quarter.

In this case, the claimant established his benefit year in the first two weeks of the last month of the calendar quarter. Pursuant to department policy, filing alternatives were not given to him regarding the impact on his weekly benefit rate or maximum benefit amount of delaying his benefit year until the next calendar quarter. The claimant's situation falls squarely within the condition set forth in sec. 129.04(2)(a), Wis. Admin. Code, permitting benefit year set aside.

Under sec. ILHR 129.04(2)(b), Wis. Admin. Code the department may not set aside a benefit year under sec. ILHR 129(2)(a), unless the department:

1. Has recovered, or has waived the recovery of, all benefits paid to the claimant for that benefit year; or

2. Offsets this amount against benefits the claimant would otherwise be eligible to receive at the time the request to set aside a benefit year was made.

Department records indicate that the department has recovered or offset any benefits paid in the benefit year begun in week 49 of 1995. Accordingly, the claimant has satisfied the conditions which allow permissive benefit year set aside.

The commission therefore finds that the claimant's benefit year that was established as a result of the claimant's initial claim filed in week 49 of 1995 is canceled, within the meaning of sec. 108.06(2)(d), Stats., and ch. ILHR 129, Wis. Admin. Code.

DECISION

The decision of the administrative law judge is modified to conform with the forgoing findings and, as modified, is affirmed. Accordingly, the department shall cancel the claimant's benefit year that was established as a result of the claimant's initial claim filed in week 49 of 1995, and permit the claimant to establish a new benefit year based on the claimant's claim filed in week 2 of 1996.

Dated and mailed: April 29, 1996
fisheja.urr : 132 : 1 CP 395

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ David B. Falstad, Commissioner

cc:
DIRECTOR GREGORY A FRIGO
BUREAU OF LEGAL AFFAIRS

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