COURT OF APPEALS
DECISION
DATED AND FILED
September 29, 2009
David R. Schanker
Clerk of Court of Appeals
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NOTICE
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This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official
Reports.
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
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Appeal No.
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STATE OF WISCONSIN
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IN COURT OF
APPEALS
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DISTRICT I
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Stanley L. Terry,
Plaintiff-Appellant,
v.
Labor and Industry Review Commission,
Defendant-Respondent.
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APPEAL
from an order of the circuit court for Milwaukee County: maxine a.
white, Judge. Affirmed.
Before Fine, Kessler and Brennan, JJ.
¶1 FINE, J. Stanley L. Terry appeals a
circuit-court order affirming the Labor and Industry Review Commission’s determination
that he falsely represented that he was able to work during the weeks for which
claims were filed under his name even though he was incarcerated, and directing
the forfeiture of almost three-thousand dollars in unemployment benefits. Terry
argues that the Commission exceeded its authority when it applied Wis. Stat. § 108.04(11)(a), (“If a
claimant, in filing his or her application for benefits or claim for any week,
conceals any material fact relating to his or her eligibility for benefits, the
claimant shall forfeit benefits ….”), to him. He also contends that the Commission’s
decision was not supported by substantial and credible evidence. We affirm.
I.
¶2 Terry worked as a journeyman roofer for twelve years. In January of 2005, a claim for unemployment
benefits was filed under his name, using his social security number and personal
identification number. He testified at
the hearing before the administrative law judge that he did not file the
January 2005 claim. Unemployment claims
for Terry were made every week thereafter through March 19, 2005, representing
that Terry was available to work during that time. On February 25, 2005, however, Terry was
incarcerated on a drug charge.
¶3 In March of 2005, Terry’s
employer notified the Department of Workforce Development that Terry was incarcerated. The Department issued an initial
determination that Terry concealed a material fact—that, contrary to the
benefits-claim representations, he was unavailable to work because of his
incarceration. Terry testified at the
hearing that his wife and stepson lived in his residence during 2005. When asked “Did you ever learn if either of
them filed a claim in your name?” he answered “No, I did not.” Terry said he had talked to his wife and
stepson about the claims, but “They didn’t have no [sic] idea what happened.”
When asked if his wife and stepson knew his social security number,
Terry answered: “Not that I know
of. Once before--when … I … was
incarcerated my wife claimed that somebody stole her purse and all of that was
in her purse.” He testified that his
wife kept his social security card, driver’s license, and birth certificate in
her purse “[c]ause [sic] she needed it” and “[i]f I keep it I
lose it.” Terry also said that while he
was locked up, he could only make collect phone calls, and the only person he
called was his wife. The administrative
law judge, finding that a person needed a personal identification number in
addition to his or her social security number in order to file a claim,
determined that although Terry “may have lacked the ability to personally call
in his weekly claims while incarcerated, he had the means to arrange for
another individual to do this for him.” The
administrative law judge concluded “that there exists sufficient circumstantial
evidence to support a conclusion that concealment occurred.”
¶4 Terry appealed the administrative law judge’s decision to the
Commission, which “agree[d] with the ALJ that [Terry’s] explanations are not
credible,” and “adopt[ed] the findings and conclusion in that decision as its
own.” Terry sought certiorari review of
the Commission’s decision. The circuit
court affirmed, as do we.
II.
¶5 On appeal, we review the opinion of the Commission, not the
circuit court. General
Cas. Co. of Wis. v. Labor &
Indus. Review Comm’n, 165 Wis.
2d 174, 177 n.2, 477 N.W.2d 322, 323 n.2 (Ct. App. 1991). The Commission’s factual findings are
invulnerable when they are “supported by credible and substantial evidence.” Id., 165 Wis. 2d at 178, 477
N.W.2d at 324. Substantial evidence is relevant, credible, and probative evidence on “which
reasonable persons could rely to reach a [conclusion].” Sills v. Walworth County Land Management
Committee, 2002 WI App 111, ¶11, 254 Wis. 2d 538, 549, 648 N.W.2d 878, 883. Further, circumstantial evidence may be as
probative as direct evidence. State
v. Poellinger, 153 Wis.
2d 493, 507, 451 N.W.2d 752, 758 (1990). Our
review and level of deference owed to the Commission on legal issues depends
upon its experience and expertise in the area.
See UFE Inc. v. Labor & Indus. Review Comm’n, 201 Wis. 2d 274, 284–287,
548 N.W.2d 57, 61–63 (1996) (discussing the three levels of deference: “great weight deference, due weight deference
and de novo review”).
¶6 As a preliminary matter, Terry
and the Commission disagree on what level of deference applies. The Commission argues we should give “great
weight” deference to the Commission’s determination. Terry
argues we must give “due weight” or “no weight” deference because this is the
first time the Commission has applied Wis.
Stat. § 108.04(11)(a) to a claimant who was found to have given information
to a third party in order to make fraudulent claims on the claimant’s behalf, contending
that “great weight” deference cannot be used where the Commission has never
previously decided a case with similar facts.
¶7 We give “great weight” deference to the Commission’s legal
conclusion if “the following four elements are met: (1) the [Commission] is responsible for
administering the statute, (2) the [Commission’s] conclusion or interpretation
is long standing, (3) the [Commission] employed its specialized knowledge or
expertise in forming the conclusion or interpretation, and (4) the
[Commission’s] interpretation provides consistency and uniformity in the
application of the statute.” See Knight
v. Labor & Indus. Review Comm’n, 220 Wis. 2d 137, 148, 582
N.W.2d 448, 453 (Ct. App.
1998). “Due weight” is applied when “the
agency interpretation is ‘very nearly’ one of first impression,” ibid.
(quoted source omitted), and de novo
review (“no weight”) applies when the Commission’s legal conclusions are
matters of first impression, see id., 220 Wis. 2d at 149, 582 N.W.2d at 453. Here, two levels of deference are supported by
Wisconsin case law: (1) “great weight”
deference even though the Commission has never dealt specifically with the
precise issue in this case, see Honthaners Restaurants, Inc. v. Labor &
Indus. Review Comm’n, 2000 WI App 273, ¶12, 240 Wis. 2d 234, 243, 621
N.W.2d 660, 664 (“[T]he
Commission need not have decided a case with identical or similar facts in
order for its decision to be given great weight deference.”), and (2) “due
weight” deference, see UFE
Inc., 201 Wis. 2d at 286–287, 287 n.3, 548 N.W.2d at 62–63, 63 n.3.
¶8 Regardless of which deference level applies, we reach the
same result: the Commission’s
interpretation of the statute is reasonable.
Thus, “[u]nder the due weight standard, we will uphold the
agency’s interpretation and application of a statute if it is reasonable and
comports with the purpose of the statute, and no other interpretation is more
reasonable.” Xerox Corp. v. Wisconsin
Dep’t. of Revenue, 2009 WI App 113, ¶48, ___Wis.
2d ___, ___, ___ N.W.2d ___, ___.
¶9 Terry contends
that, under Wis. Stat. § 108.04(11)(a),
he cannot be the
unemployment-benefits “claimant” because it was impossible for him to phone-in
the claims while incarcerated because he could only make collect phone calls; thus,
he asserts it is undisputed that he did not personally file the claims. He argues it is more reasonable to interpret
the statute to require that the “claimant” actually be the person who
physically files the claim. This,
however, ignores the long-recognized reality that persons frequently act
through agents, see Kasson
v. Noltner, 43 Wis.
646, 650–651 (1878), and
this is what the administrative law judge found that Terry
did. Thus, the Commission’s decision
upholding the administrative law judge’s determination was both reasonable and,
indeed, required, because otherwise, persons could circumvent the
enforcement-mechanism applied here by the simple expedient of having someone
else file the necessary documents to get benefits. In short, Terry’s
procrustean reading of the word “claimant” in § 108.04(11)(a) is
unreasonable.
By the Court.—Order affirmed.
Publication in the official reports is not recommended.