Wisconsin Department of Workforce Development, Plaintiff-Appellant,
Wisconsin Labor and Industry Review Commission and Kenton Morse, Defendants-Respondents, Riteway Bus Service, Inc., Defendant. Wisconsin Department of Workforce Development, Plaintiff-Appellant,
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,
Wisconsin Labor and Industry Review Commission, Defendant-Respondent, Benny Nelms, Boys & Girls Club of Greater Milwaukee, Inc. and Milwaukee Public Schools, Defendants.
from an order of the circuit court for Milwaukee County Cir.
Ct. Nos. 2015CV9946 2016CV0135 2016CV1085: JOHN J. DIMOTTO,
Brennan, P. J., Kessler and Brash, J J.
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),
overpayment involved no fault of the claimants and was the
result of a departmental error. We affirm. BACKGROUND
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:
avoid confusion, we refer hereafter to § 108.04(12)(f)l.
(2013-14) as the "eligibility statute."
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.
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
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.
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.
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 ...