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Wisconsin Department of Workforce Development v. Wisconsin Labor and Industry Review Commission

Court of Appeals of Wisconsin, District I

September 12, 2017

Wisconsin Department of Workforce Development, Plaintiff-Appellant,
v.
Wisconsin Labor and Industry Review Commission and Kenton Morse, Defendants-Respondents, Riteway Bus Service, Inc., Defendant. Wisconsin Department of Workforce Development, Plaintiff-Appellant,
v.
Wisconsin Labor and Industry Review Commission, Defendant-Respondent, Kevin Lucey, John Doe Number 1, John Doe Number 2, John Doe Number 3, John Doe Number 4 and Compo Steel Products, Inc., Defendants. Wisconsin Department of Workforce Development, Plaintiff-Appellant,
v.
Wisconsin Labor and Industry Review Commission, Defendant-Respondent, Benny Nelms, Boys & Girls Club of Greater Milwaukee, Inc. and Milwaukee Public Schools, Defendants.

         APPEAL from an order of the circuit court for Milwaukee County Cir. Ct. Nos. 2015CV9946 2016CV0135 2016CV1085: JOHN J. DIMOTTO, Judge. Affirmed.

          Before Brennan, P. J., Kessler and Brash, J J.

          KESSLER, J.

         ¶1 The Department of Workforce Development (DWD) appeals a circuit court decision affirming the Labor and Industry Review Commission's (LIRC) decision waiving DWD's recovery of erroneously paid unemployment benefits to three claimants. LIRC found, and the circuit court upheld, that pursuant to WIS. STAT. § 108.22(8)(c) (2015-16), [1] the overpayment involved no fault of the claimants and was the result of a departmental error. We affirm. BACKGROUND

         ¶2 Kenton Morse, Benny Nelms, and Kevin Lucey were disabled workers who received social security disability benefits (SSDI). When they became unemployed, they applied for unemployment insurance benefits. SSDI payments are paid on a monthly basis, while unemployment benefits are paid on a weekly basis. All three claimants were initially determined by DWD to be ineligible for benefits under WIS. STAT. § 108.04(12)(f)l. (2013-14), which provided, as relevant:

         ....

         To avoid confusion, we refer hereafter to § 108.04(12)(f)l. (2013-14) as the "eligibility statute."

         ¶3 The three claimants appealed DWD's initial determination to the Department of Hearing and Appeals. The appeals tribunal, relying on LIRC's prior interpretation of the eligibility statute, reversed the DWD's initial determination, finding that the eligibility statute only prohibited claimants from receiving unemployment insurance benefits in the same week of each month in which the claimants actually received their monthly SSDI benefit. DWD appealed all three cases to LIRC.

         ¶4 LIRC affirmed the appeals tribunal as to Morse and Nelms, but its decisions were set aside by the circuit court. The circuit court determined that under the eligibility statute, a claimant is ineligible for benefits in every week of any month during which he or she receives SSDI benefits. Morse's and Nelm's cases were remanded to LIRC. On remand, LIRC declared Morse and Nelms ineligible for benefits, but found that pursuant to WIS. STAT. § 108.22(8)(c), DWD was not entitled to recover any overpayments made to Morse and Nelms. By DWD's calculations, Morse received an overpayment in the amount of $1213 and Nelms received an overpayment in the amount of $2554.

         ¶5 By the time the DWD's appeal of Lucey's case was before LIRC, the circuit court had already reversed LIRC's decisions as to Morse and Nelms. LIRC therefore reversed the appeals tribunal as to Lucey and concluded that the eligibility statute states that a claimant is ineligible for benefits in every week of any month in which the claimant receives SSDI benefits. LIRC then addressed the issue of whether DWD was entitled to recover any overpayment made to Lucey. By DWD's calculation, Lucey received an overpayment in the amount of $2619. LIRC determined that pursuant to WIS. STAT. § 108.22(8)(c), DWD waived the ability to recovery any such overpayment.

         ¶6 WISCONSIN STAT. § 108.22(8)(c) describes certain circumstances warranting the waiver of overpayment recovery:

1. [T]he department shall waive recovery of benefits that were erroneously paid if:
a. The overpayment were a result of department error; and
b. The overpayment did not result ...because of a claimant's false statement or misrepresentation.
2. If a determination or decision issued [under the benefit claims procedure in § 108.09] is amended, modified or reversed by an appeal tribunal, the commission or any court, that action shall not be treated as establishing a ...

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