Paul L. Yapp v. LIRC

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
December 10, 2020
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2020AP252 Cir. Ct. No. 2019CV1982

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

PAUL L. YAPP,

PLAINTIFF-APPELLANT,

V.

LABOR AND INDUSTRY REVIEW COMMISSION AND
DEPARTMENT OF WORKFORCE DEVELOPMENT,

DEFENDANTS-RESPONDENTS,

WAYNE YAPP (DECEASED),

DEFENDANT.

APPEAL from an order of the circuit court for Dane County:
VALERIE BAILEY-RIHN, Judge. Affirmed.

Before Fitzpatrick, P.J., Blanchard, and Graham, JJ.
No. 2020AP252

¶1 GRAHAM, J. Paul Yapp was formerly employed by his ailing
father as a personal caregiver, and his employment ended when his father moved
to a nursing home.1 The Labor and Industry Review Commission (LIRC)
determined that Paul was not eligible for unemployment benefits based on what
we refer to as the “personal care exemption” found in WIS. STAT.
§ 108.02(15)(km) (2017-18).2 LIRC also determined that Paul was required to
repay the benefits that he had received in error. The circuit court affirmed LIRC’s
decision, and we affirm the circuit court.

BACKGROUND

¶2 Wayne Yapp was diagnosed with dementia, and his son Paul became
his caretaker in 2006. Paul did not have any formal medical training, and he was
not licensed to provide nursing or medical care. Among other things, Paul
distributed medication to Wayne, monitored his conditions, and performed other
tasks that LIRC has referred to as “personal cares.”

¶3 Paul was initially paid with funds from Wayne’s checking account.
Then, in April 2015, Wayne enrolled in Wisconsin’s family care program for self-
directed support. See WIS. STAT. § 46.2897 (pertaining to Wisconsin’s “self-
directed services option” under which an “enrolled individual selects his or her
own services and service providers”); WIS. ADMIN. CODE § DHS ch. 10 (through

1
Because Paul and his father, Wayne Yapp, share a last name, we refer to them by their
first names.
2
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
stated.

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November 2020)3 (setting forth parameters of the family care program through
which elders and disabled individuals may employ family members to care for
them using medical assistance funds). Wayne continued to be Paul’s “employing
unit,” see WIS. STAT. § 108.02(14m), but from that point forward, Paul was paid
using federal funds distributed through Care Wisconsin.4

¶4 Care Wisconsin provided Wayne with a fiscal agent who was
responsible for managing his payroll and related financial obligations. Wayne’s
fiscal agent did not report Paul’s wages to the Wisconsin Department of
Workforce Development (the Department), nor did the agent make contributions
related to Paul’s employment to the Wisconsin unemployment reserve fund that
the Department administers. As discussed below, this is consistent with
Wisconsin’s unemployment law, which defines “employment” for purposes of
Wisconsin’s unemployment insurance fund and determines which employees are
eligible for unemployment benefits. WIS. STAT. § 108.02(15).

¶5 Paul’s employment ended in December 2016 when Wayne entered a
nursing home. Paul later testified that prior to filing a claim, he spoke with several
individuals, including an unnamed Department employee, about whether he was

3
All references to the Wisconsin Administrative Code are to the November 2020
Register.
4
According to LIRC, Care Wisconsin is a managed care organization that provides and
coordinates services that allow qualified elders and adults with disabilities to remain in their
homes using funds from the federal Medicare and Medicaid programs.

During the unemployment appeals hearing that is the subject of this appeal, Paul testified
that he believed that Care Wisconsin was his employer, and LIRC credited Paul’s testimony that
he believed as much. However, Paul’s testimony reflects a misunderstanding of how Wisconsin’s
family care program works. Although Care Wisconsin and the appointed fiscal agent handled
various administrative aspects of Paul’s employment, LIRC determined that Wayne remained
Paul’s employer.

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eligible for unemployment benefits. According to Paul, he specifically told the
employee that he had been providing care to his father, and the employee advised
him that he was eligible for benefits.

¶6 If given, the unnamed Department employee’s alleged advice would
have been contrary to WIS. STAT. § 108.02(15)(km). That statute provides that,
under most circumstances,5 individuals are not eligible for unemployment benefits
if the employment consisted of “personal care” service “provided by [the]
individual to an ill or disabled family member who is the employing unit for such
service.” Id. For ease of reference, we refer to this statute as the “personal care
exemption.”

¶7 Paul applied for unemployment benefits in June 2017.6 The
Department did not have any reported wages on file for Paul, so it sent out two
requests for wage information: a “Form UCB-19” addressed to Paul; and a “Form
UCB-719” addressed to his employer, Wayne Yapp. By the time the Department
sent these forms, Wayne was no longer enrolled in the family care program and no
longer represented by a fiscal agent. Paul, acting as Wayne’s power of attorney,
completed Form UCB-719 by entering his own wages from 2016. The form
instructed the employer to write “excluded” after any wage entry for which wages

5
Employing units can elect to make contributions into the unemployment reserve fund
when they hire family members as caregivers, thereby rendering the caregivers eligible to receive
unemployment benefits. See WIS. STAT. § 108.02(15)(km) (providing an exception to the
personal care exemption if “the employer elects otherwise with the department’s approval”). It is
undisputed that Wayne did not elect to make contributions for Paul, so we discuss this exception
to the personal care exemption no further.
6
The parties dispute whether the Department asked Paul if he was related to his
employer at the time he filed the claim. This dispute is discussed in greater detail in the
discussion section below.

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“were for work performed in excluded employment.” Paul did not indicate that
his wages were “excluded” on the Form UCB-719; he later testified that he did not
believe that his wages were excluded based on the conversation he allegedly had
with the unnamed Department employee before he filed his claim.

¶8 The Department issued an initial determination approving Paul’s
application, and it paid Paul nearly $6,000 in benefits over the next year. Then, in
June 2018,7 the Department initiated an investigation because it had discovered
that Paul was Wayne’s son. The Department concluded that Paul was not eligible
for benefits, and it required him to repay the benefits that it determined he had
already received in error.

¶9 Paul appealed the Department’s decision, and the matter was heard
by an administrative law judge (ALJ) employed by the Department. See WIS.
STAT. § 108.09(3)(a). Paul argued that the personal care exemption did not apply
to his employment because he had provided nursing and medical care—in addition
to personal care—for Wayne. In the alternative, he argued that any error was
exclusively the fault of the Department, and therefore, that the Department should
waive his obligation to repay the benefits he had already received. See WIS. STAT.
§ 108.22(8)(c) (identifying circumstances under which the Department may waive
recovery of benefits paid in error).

7
LIRC’s decision erroneously states that the investigation occurred in 2017, and that
during the investigation, Paul was asked about the answers that he provided when he applied for
unemployment in June 2016. These dates are not correct; the administrative record demonstrates
that Paul applied for unemployment in June 2017 and the Department’s investigation occurred a
year later in June 2018.

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No. 2020AP252

¶10 Paul makes a number of procedural arguments challenging the
manner in which the ALJ handled the administrative proceedings that followed;
his arguments and the timeline of the proceedings are recounted in greater detail
below. For now, it suffices to note that the ALJ held three hearings: the first on
July 23, 2018, the second on August 20, 2018, and the third on February 20, 2019.
The ALJ initiated the second hearing on her own motion to take evidence
regarding Exhibit 5, a document that purports to be a “Claim Summary” of Paul’s
initial online application for benefits. The third hearing was the result of a remand
by LIRC to collect evidence about why the Department failed to discover that Paul
was ineligible when he first applied for benefits. The ALJ ultimately determined
that Paul was ineligible for benefits and had to repay the benefits he had already
received. Paul appealed this decision to LIRC.

¶11 LIRC issued a final decision affirming the ALJ’s decision on
June 26, 2019. Among other things, LIRC determined that the benefits Paul
received “were paid to the employee in error and are overpaid.” It also determined
that “[r]ecovery of the overpayment cannot be waived under WIS. STAT.
§ 108.22(8)(b)” because the overpayment “resulted from the fault of the employee,
as defined in WIS. STAT. § 108.04(13)(f).” LIRC specifically found that,
“[a]lthough not intentional, [Paul] failed to provide correct and complete
information” to the Department on two occasions: first, in his initial application
(that is, Exhibit 5); and second, when he completed Form UCB-719 as power of
attorney for Wayne.

¶12 Paul petitioned for judicial review pursuant to WIS. STAT.
§ 108.09(7), and the circuit court affirmed LIRC’s decision.

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STANDARD OF REVIEW

¶13 As in any appeal contesting the denial of unemployment benefits, we
review the decision issued by LIRC, rather than the decision issued by the circuit
court. Operton v. LIRC, 2017 WI 46, ¶18, 375 Wis. 2d 1, 894 N.W.2d 426; Klatt
v. LIRC, 2003 WI App 197, ¶10, 266 Wis. 2d 1038, 669 N.W.2d 752.

¶14 Whether a former employee is entitled to unemployment benefits
under WIS. STAT. ch. 108 presents a mixed question of law and fact. Klatt, 266
Wis. 2d 1038, ¶10. This court is not bound by LIRC’s interpretation of a statute.
See Operton, 375 Wis. 2d 1, ¶19. The proper interpretation and application of the
unemployment statutes present questions of law, which we review independently
without deference to LIRC’s decisions.8 See Kierstead v. LIRC, 2012 WI App 57,
¶12, 341 Wis. 2d 343, 817 N.W.2d 878; Klatt, 266 Wis. 2d 1038, ¶¶10, 13. We
will uphold LIRC’s factual findings if they are supported by credible and
substantial evidence. WIS. STAT. § 108.09(7)(f); Operton, 375 Wis. 2d 1, ¶18.

DISCUSSION

¶15 We first consider whether Paul was eligible for unemployment
benefits, and we conclude that he was not. Next, we review LIRC’s determination
that Paul must repay the benefits that he received in error, and we conclude that

8
The parties dispute whether we should, as “a matter of persuasion,” give “due weight”
to LIRC’s interpretations of WIS. STAT. ch. 108, including its interpretation of the personal care
exemption. See Tetra Tech EC, Inc. v. DOR, 2018 WI 75, ¶108, 382 Wis. 2d 496, 914 N.W.2d
21; DWD v. LIRC, 2018 WI 77, ¶4 n.4, 382 Wis. 2d 611, 914 N.W.2d 625. We need not and do
not resolve this issue because our conclusions would be the same whether or not we give due
weight to LIRC’s conclusions of law.

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No. 2020AP252

this determination is supported by credible and substantial evidence. Finally, we
consider and reject Paul’s procedural arguments.

I. LIRC’s Eligibility Determination

¶16 Paul contends that he is eligible for unemployment benefits, and that
LIRC erred in determining otherwise. Resolution of this issue turns on the
definition of “employment” in Wisconsin’s unemployment insurance statute, WIS.
STAT. § 108.02(15).

¶17 WISCONSIN STAT. § 108.02(15) recognizes that some types of paid
services are covered employment for purposes of eligibility for benefits, and other
types of paid services are not. As noted above, the personal care exemption
specifically excludes service that is “provided by an individual to an ill or disabled
family member who is the employing unit for such service, if the service is
personal care ….” Section 108.02(15)(km). The legislature passed the personal
care exemption in 2009, see 2009 Wis. Act 287, § 13, and according to LIRC, it
was intended to relieve elderly and disabled persons of the responsibility of
making contributions to the unemployment reserve fund when they hire relatives
as personal care providers. Based on the evidence presented at the hearing, LIRC
determined that Paul provided personal care services to his father, and that these
services were performed in excluded employment within the meaning of the
personal care exemption.

¶18 Neither party attempts to define “personal care” and we need not
dwell on the precise definition of that term in this context. Paul acknowledges that
the services he provided included personal care and tacitly acknowledges that he
was hired to provide such services. However, Paul contends that he also provided
medical and nursing services, that he was a “key part of the medical care” Wayne

8
No. 2020AP252

received, and that without his care, Wayne “would have needed to be admitted to a
nursing home that specialized in dementia care.” Paul testified that, in addition to
assisting Wayne with activities of daily living and instrumental activities of daily
living, he also cleaned Wayne’s wounds, collected and tested his urine samples,
monitored his medication dosages and requested dosage changes when antibiotics
were ineffective, cleaned impacted feces, and cleaned and monitored his catheters.
According to Paul, employees can escape the personal care exemption if the
services they provide “encompass more than personal care.” Stated differently,
Paul argues that there is an exception to the personal care exemption, and that he
falls within that exception.

¶19 It appears that LIRC credited Paul’s testimony about the specific
services he provided to Wayne, and the record provides no reason to doubt it. We
have no reason to question that Paul provided essential care that helped to keep
Wayne out of a nursing home for years—that is, after all, one of the aims of
Wisconsin’s family care program. See WIS. ADMIN CODE. § DHS 10.11 (noting
that the program is “designed to help families arrange for appropriate long-term
care services for older family members”). Nor do we have reason to question that
over the years, Paul gained significant insight into Wayne’s medical condition and
developed skills to address his needs.

¶20 However, we disagree that the day-to-day duties Paul described
during the hearing transformed his employment from “personal care” to another
type of employment that might be covered under Wisconsin unemployment
insurance law. The legislature made a policy choice to exempt elderly and
disabled individuals from paying into Wisconsin’s unemployment insurance fund
when they hire relatives to provide personal care services; as a consequence of this
choice, such employees are not eligible for unemployment benefits when their

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No. 2020AP252

employment ends. The care Paul provided to his father is the type of care that
family members routinely provide to help ill or disabled relatives address their
medical conditions, and that such individuals may require. Paul cites no authority
to support his contention that employees escape the personal care exemption by
providing these types of services. Nothing in the plain text of the statute carves
out any such exception, and such an exception could render the personal care
exemption essentially meaningless. See Belding v. Demoulin, 2014 WI 8, ¶17,
352 Wis. 2d 359, 367, 843 N.W.2d 373 (“Statutory interpretations that render
provisions meaningless should be avoided.”).

¶21 Paul also suggests that LIRC’s decision was unduly influenced by
the fact that he is not licensed to provide medical care. He contends that nothing
in the unemployment statutes “mandates professional medical training or licensure
for medical care rather than personal care to be provided.” This argument misses
the point. Paul’s admission that he was not licensed to provide medical care is
probative of the kind of services that he was hired and paid to provide to Wayne.
Paul’s wages were funded by Medicare or Medicaid, and Paul does not explain
why these programs would pay for unlicensed individuals to administer services
that it classifies as nursing or medical care. The fact that Paul is not a licensed
provider supports LIRC’s determination that he was hired to provide personal care
services, not nursing or medical care, for his father.

¶22 We conclude that LIRC did not misinterpret WIS. STAT.
§ 108.02(15)(km), and that it correctly determined that Paul provided personal
care to his father. Accordingly, we conclude that LIRC did not err when it
determined that Paul was not eligible for unemployment benefits.

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No. 2020AP252

II. LIRC’s Repayment Determination

¶23 We now turn to LIRC’s decision to require repayment of the benefits
that the Department paid to Paul in error. Paul argues repayment of these benefits
should be waived because he relied on inaccurate advice from a Department
employee, and because the Department has not demonstrated that Paul provided
any incomplete or incorrect information.

¶24 The pertinent statutes are WIS. STAT. §§ 108.22(8)(c)1. and
108.04(13)(f). Section 108.22(8)(c)1. provides that the Department “shall waive
recovery of benefits that were erroneously paid” if the overpayment “was a result
of a departmental error” and “did not result from the fault of the employee [here,
Paul] as provided in § 108.04(13)(f), or because of [the employee’s] false
statement or misrepresentation.” Section 108.04(13)(f) provides that one way an
employee can be at “fault” is if that employee “fails to provide correct and
complete information to the department.” Taken together, these two statutes
provide that, even if the Department is partially at fault for an overpayment, it will
not waive repayment if the employee was also at fault. And an employee can be
at fault if the employee provided incorrect or incomplete information to the
Department.

¶25 There is evidence in the record suggesting that the Department was
at least partially at fault for the overpayment. LIRC did not make any findings on
this point, but, to the extent that an unnamed Department employee advised Paul
that he was eligible for benefits, that advice would not have been correct.
Additionally, it appears that the Department overlooked information that it had at
its disposal when it initially approved Paul’s claim for benefits. The Department’s
records showed that Paul and Wayne shared a last name and a mailing address,

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No. 2020AP252

suggesting a familial relationship; additionally, there was testimony that Wayne’s
fiscal agent informed the Department on two prior occasions that Paul was
Wayne’s son and ineligible for benefits.9

¶26 However, any evidence suggesting Department error is not
dispositive. As discussed above, the question is whether Paul was also at fault for
providing incorrect or incomplete information to the Department. LIRC
determined that Paul provided incorrect or incomplete information to the
Department in two different documents: Form UCB-719 and Exhibit 5. We need
not decide whether the information Paul provided in Form UCB-719 constitutes
incorrect or incomplete information provided by an employee because there is
substantial and credible evidence that Paul provided incorrect information in
Exhibit 5.10

9
A Department witness nevertheless testified that the Department “had no way of
knowing” that Paul worked in excluded employment “because the employer didn’t raise the issue
and the claimant didn’t report it,” and because there was “no one to notice” that Paul’s last name
“looks very similar to the employer’s last name.” As we understand this testimony, the
Department witness suggested that no human being actually reviewed the claim before it was
approved. This explanation is difficult to square with the undisputed facts of this case. As we
have explained, it is undisputed that there were no wages on file for Paul, and that the Department
did not just automatically approve his claim—instead, the Department sent forms to the employer
and the employee at the very same address, and it approved Paul’s benefit claim only after it
reviewed Paul’s handwritten responses to these requests.
10
As mentioned above, Form UCB-719 was a document that was sent to the employer,
and among other things, it asked the employer to indicate whether any of the reported wages were
“excluded.” Paul argues that his response does not constitute incorrect or incomplete information
provided by an employee for two reasons. First, he argues that he filled the form out in his
capacity as power of attorney for the employer, not as an employee. Second, he argues that the
alleged inaccuracy related to a mistaken conclusion of law rather than a misrepresentation of fact.
We do not address these arguments because they are not dispositive. Barrows v. American
Family Ins. Co., 2014 WI App 11, ¶9, 352 Wis. 2d 436, 842 N.W.2d 508 (2013) (“An appellate
court need not address every issue raised by the parties when one issue is dispositive.”).

(continued)

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¶27 To explain this conclusion and provide context for Paul’s arguments
to the contrary, we present additional background information about Exhibit 5 and
how it came to be part of the record. Exhibit 5 is a four-page document that
purports to be a “Claim Summary.” It appears to have been printed out from a
computer system, and it supposedly contains the information that Paul provided to
the Department in his online application for unemployment benefits. Among other
things, Exhibit 5 identifies “WAYNE YAPP” as Paul’s employer. It contains a
number of eligibility questions, including: “Did you, your spouse, your parents,
and/or your children, fully or partially own or control this employer …?” And in
response to this question, there is a checkbox marked “No.” If Exhibit 5 is what it
purports to be, it constitutes substantial evidence that Paul provided incorrect
information to the Department in his answer to this question.

¶28 The ALJ introduced Exhibit 5 at the outset of the second hearing,
and Paul immediately questioned its authenticity. In response, the ALJ asserted
that Exhibit 5 is a “printout of a Wisconsin unemployment insurance claim
summary,” “a claim that [Paul] filed for June 24, 2017,” and a “department
record.” Paul testified that he did not have any independent recollection of filling
out the claim summary. He testified that he had no idea whether he had supplied
the answers or whether the summary was filled out by someone else. And he
testified that at the time he applied for benefits, he believed that Care Wisconsin—
not Wayne Yapp—was his employer because it was the source of his income, set
his wages and hours, and assessed his performance.

We also note that the circuit court determined that Paul provided inaccurate information
to the Department on two additional occasions. We do not consider these additional occasions
because they are not dispositive.

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¶29 Paul’s attorney objected to the admissibility of Exhibit 5 based on
lack of foundation (and for other reasons discussed in greater detail in the
following section of this opinion). The ALJ overruled Paul’s objection and
admitted Exhibit 5. She stated: “[A]s far as to the foundation, it is a department
record and I can consider it, which I will.”11

¶30 If the evidence were limited to what was presented at the second
hearing, we might have difficulty determining that Exhibit 5 constitutes substantial
and credible evidence that Paul provided incorrect information to the Department.
This is because, whether or not it is properly classified as a “department record,”
no evidence was introduced during the second hearing about whether the
information on Exhibit 5 was provided by Paul or by someone else.

¶31 However, this gap in the record was cured during the third hearing,
which followed a remand from LIRC. During that hearing, a Department witness
specifically testified that Exhibit 5 contained the “actual answers” that Paul gave
when filing a claim for benefits rather than a “summary of those answers,” and
that the answers had been provided by Paul rather than someone else. The
exchange between Paul’s attorney and the Department witness proceeded as
follows:

Q: What is this, [Exhibit 5]?

11
The rules of evidence do not strictly apply in unemployment hearings. WIS. STAT.
§ 108.09(5); WIS. ADMIN. CODE § DWD 140.16(1). Additionally, certain statutes allow an ALJ
to take “administrative notice” of Department records. WIS. ADMIN. CODE § DWD 140.16(2).

Paul argues that we should conclude that Exhibit 5 was inadmissible as presented at this
hearing, but we decline to reach that conclusion in light of the relaxed evidentiary standards at
unemployment hearings, the deferential standard of review that we apply to LIRC’s findings of
fact, and the evidence adduced at the third hearing, which tended to demonstrate that Exhibit 5
was a Department record and the proper subject of administrative notice by the ALJ.

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A: What is – it is a copy of the answers [Paul] gave
for his internet initial claim. It is his claim summary.

Q: Okay. So it’s a replica of the actual answers or
is it a summary of those answers?

A: These are his answers.

Q: The actual answers or a summary of those
answers?

….

A: These are the answers he gave. In other words,
they weren’t paraphrased if that’s what you’re getting to.

¶32 To be sure, Paul questions the veracity of the Department witness’s
testimony. He points to an email sent by a Department investigator, which asserts:
“I don’t see in reviewing the initial claim snapshot viewer that he was asked if he
was related to Wayne Yapp ….” He points to his own testimony that he had no
recollection of filling out Exhibit 5. And he contends that it makes little sense that
Paul would have listed “WAYNE YAPP” as his employer on Exhibit 5, since he
mistakenly believed that Care Wisconsin was his employer. However, under the
applicable standard of review, we search for reasons to affirm LIRC’s findings of
fact, not to negate them. Ide v. LIRC, 224 Wis. 2d 159, 165, 589 N.W.2d 363
(1999). Exhibit 5, combined with the Department witness’s testimony that
Exhibit 5 contained Paul’s “actual answers,” support LIRC’s finding that Paul
provided incorrect information to the Department.

¶33 Accordingly, we conclude that there is credible and substantial
evidence in the record to support LIRC’s finding that, even if unwittingly, Paul
provided incorrect information to the Department. Therefore, we cannot conclude
that LIRC erred when it denied Paul’s request to waive repayment of the benefits.
Although there may also be evidence that would support the opposite finding, the

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applicable standard of review does not allow us to weigh all the evidence and
come to an independent conclusion. See id.

III. Procedural Arguments

¶34 Finally, Paul advances a number of procedural arguments about the
administrative hearings and appeal. He contends, among other things, that “it was
a violation of due process, an abuse of discretion, and departmental error [for the
ALJ] to continue the hearing for a second day,” and that LIRC “exceeded its
authority” when it remanded the matter for a third hearing.

¶35 We begin with some general observations about due process.
Generally, due process requires notice and a meaningful opportunity to be heard.
Mathews v. Eldridge, 424 U.S. 319, 333 (1976). Paul’s argument is not that he
was denied an opportunity to be heard, but rather that there was too much process
and too many hearings in this case. He argues, in essence, that the ALJ should
have decided the case exclusively based on the evidence presented at the first
hearing, at which point “there was no evidence in the hearing record to indicate”
that Paul “supplied a misleading answer to the Department about his familial
relationship.” The aim of each of Paul’s procedural arguments is to demonstrate
that the ALJ and LIRC should not have considered Exhibit 5 at all.

¶36 With these general observations in mind, we address each of Paul’s
process-based arguments in turn.

¶37 First, Paul argues that the ALJ lacked authority to continue the
hearing for a second day. He points to the fact that, at the conclusion of the first
hearing, the ALJ indicated that “the hearing record is now closed” and that she
would be issuing a written decision shortly. Then, the following day, the ALJ sent

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No. 2020AP252

a letter indicating that she would “be continuing this hearing to take additional
testimony.” It was at the second hearing that the ALJ presented Exhibit 5 and
admitted it into the record over Paul’s objection.

¶38 We agree with LIRC that the ALJ had authority to continue the
hearing for a second day of testimony. Paul cites WIS. STAT. § 108.09(4)(a) for
the proposition that an appeal tribunal should endeavor to “promptly decide”
unemployment appeals. However, § 108.09(4)(b) specifically allows a hearing to
be “continued, adjourned or postponed from time to time” at the tribunal’s
discretion. Paul identified no authorities that would limit this discretion. He
points to WIS. ADMIN. CODE § DWD 140.15(2), which specifically provides that
the tribunal may continue a hearing “when the hearing cannot be completed in the
time scheduled,” but this rule does not purport to limit the tribunal’s authority to
continue a hearing under other circumstances. And Paul does not consider the
effect of § 108.09(4)(f), which allows the tribunal to reopen a hearing on the its
own motion to take additional testimony as warranted within 21 days after issuing
a decision. If the tribunal has statutory authority to reopen the record even after it
has issued a decision, we do not see why it would lack authority to do so earlier in
the proceedings. Cf. R.F. Gehrke Sheet Metal Works v. Mahl, 237 Wis. 414, 297
N.W. 373 (1941) (stating the statutory interpretation principle that “the greater
[power] includes the lesser”). Paul does not point to any statute, rule, or case that
would prohibit the ALJ from continuing the hearing to take additional testimony
simply because she stated at one point that the record was “closed.”

¶39 Second, Paul contends that the ALJ exceeded her “role and
responsibility as [an] administrative law judge” when she obtained Exhibit 5 from
Department files. He argues that this action demonstrates that she was biased
against him. In evaluating this argument, it is important to acknowledge that

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Wisconsin unemployment hearings can differ from a typical adversarial process in
which two sets of attorneys represent opposing views and provide evidence and
arguments for consideration by a neutral judge. In unemployment hearings, the
tribunal acts as a decision maker—but also as a Department employee who may be
expected to play an investigatory role and has a “responsibility to develop the
facts.” WIS. ADMIN. CODE §§ DWD 140.15(2) and 140.16(1).12 Paul cites
Wisconsin Jud. Comm’n v. Piontek, 2019 WI 51, 386 Wis. 2d 703, 927 N.W.2d
552, for the principle that a court may not base its decisions on its own
“independent investigations of public record.” But Piontek is inapt because it
concerns the role of a circuit court judge, not the role of an ALJ presiding over an
unemployment hearing. Piontek, 386 Wis. 2d 703, ¶1. Here, Paul’s employer did
not appear at the hearing, and the ALJ assumed her legal responsibility to

12
This dual role as decision maker and investigator is expressly approved of by the
handbook issued by the U.S. Department of Labor upon which Paul relies. See OFFICE OF
UNEMPLOYMENT INS., ET HANDBOOK NO. 382, HANDBOOK FOR MEASURING UNEMPLOYMENT
INSURANCE LOWER AUTHORITY APPEALS QUALITY (March 2011, 3rd ed.),
https://wdr.doleta.gov/directives/attach/ETAH/ET_Handbook_No_382_3rd_Edition.pdf. That
handbook notes that “[s]tate laws differ on the hearing officer’s obligations to obtain evidence[,]”
id. at 49, and it further provides:

If … claimants were required on appeal to depend on their own
resources, it is doubtful that such a procedure would be
conductive to the disclosure of truth and the attainment of
justice. On the other hand, claimants should not be permitted to
prevail because of the State agency’s failure to adduce
disqualifying facts which the appeal tribunal, through its own
resources, is able to elicit.

The hearing is not a contest between two opposite
parties, with the appeal tribunal sitting on the sidelines. The
hearing officer is, in effect a board of inquiry, responsible for
getting complete and accurate facts. It is that responsibility of
appeal tribunals which appropriately substitutes for a burden of
proof on the parties in unemployment insurance hearings.

Id. at 116.

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No. 2020AP252

accurately develop the facts.13 That she did so does not demonstrate that she acted
as a hostile adversary who was biased against Paul.

¶40 Third, Paul argues that the ALJ’s reliance on Exhibit 5 was improper
because it was not included in the hearing file that was provided for his attorney’s
review prior to the second hearing. By way of background, the tribunal is to
prepare a hearing file, which “shall contain the papers, documents and
departmental records relating to the issue of the hearing.” WIS. ADMIN. CODE
§ DWD 140.09(1)(a). Such files are available for inspection by the parties. Id.
Paul’s attorney inspected the hearing file on the final business day before the
second hearing, and he contends that Exhibit 5 was not included in the hearing file
at that time. Paul argues that he was ambushed by Exhibit 5 at the second hearing,
which was fundamentally unfair because inspection of the hearing file is “the sole
means of discovery available to a party or representative prior to a hearing.”
Section DWD 140.09(1)(b).

¶41 Of all of Paul’s procedural complaints, we are most troubled by this
one. LIRC contends that it is common for documents to “not make it into a
hearing file until immediately before the hearing or even just after [the hearing]
begin[s].” Here, however, it appears that Exhibit 5 was printed the day after the
first hearing, long before the second hearing took place. Under WIS. ADMIN.
CODE § DWD 140.09(1), Paul’s attorney should have had the opportunity to

13
In many appeals related to unemployment benefits, employers participate in the
proceedings and advance positions that are adverse to their former employees. In such cases, the
employer will necessarily play a greater role in developing the facts, and it may be less incumbent
upon the tribunal to assume the responsibility of doing so.

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No. 2020AP252

review this “departmental record[] relating to the issue of the hearing” when he
inspected the hearing file on the last business day before the second hearing.

¶42 Although this incident is concerning, Paul does not cite any rule that
precludes a tribunal from considering a document as evidence under these
circumstances. Nor does he establish that he was unfairly prejudiced by the ALJ’s
failure to place Exhibit 5 in the hearing file in this case. That is, he does not
identify any evidence or argument that he would have been able to present if his
attorney had reviewed Exhibit 5 in advance of the second hearing. And here, if
there was evidence or an argument that he could have presented with advance
notice of Exhibit 5, he had an additional opportunity to present it during the third
hearing, following the remand from LIRC. WISCONSIN STAT. § 108.09(7)(dm)
instructs us to disregard any irregularity or error in the proceedings unless it
appears that the complaining party was damaged by it, and we cannot conclude
that Paul was damaged by the ALJ’s failure to place Exhibit 5 in the file prior to
the second hearing.

¶43 Finally, Paul argues that LIRC lacked authority to remand for a third
hearing. LIRC has broad authority to remand for the taking of evidence, WIS.
STAT. § 108.09(6)(d), and Paul’s argument to the contrary is difficult to follow.
Paul argues that LIRC remanded for a third hearing “to get testimony from a
Department staffer about why there were two unemployment account numbers
connected to Wayne Yapp,” and in so doing, LIRC violated the principle that it
may not take administrative notice of information that is contained within its files.
See Amsoil Inc. v. LIRC, 173 Wis. 2d 154, 166, 496 N.W.2d 150 (Ct. App. 1992).
But Paul does not explain how ordering a hearing based on certain information is
equivalent to taking administrative notice of that information. Unlike in Amsoil,
LIRC did not make any findings or issue any decision based on any information

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No. 2020AP252

found in its files. See id. at 162 (stating that, in that case, “LIRC took
‘administrative notice’ of the entire … record” of a separate proceeding “to aid in
its decision”). Instead, LIRC appeared to have been troubled by the Department’s
failure to discover information that it believed to be readily available and that
should have alerted the Department that Paul was ineligible for benefits. LIRC
remanded for additional fact finding about whether the Department was at fault.
The ALJ took additional evidence as directed, that evidence became part of the
record, and LIRC’s final decision referenced that evidence. Under these
circumstances, we are not persuaded that LIRC’s remand order violated Amsoil.14

CONCLUSION

¶44 For all of the above reasons, we conclude that Paul was not eligible
for unemployment benefits, and LIRC did not err when it determined that the
overpayment of benefits he received could not be waived. Accordingly, we affirm
the circuit court.

By the Court.—Order affirmed.

Not recommended for publication in the official reports.

14
Paul also makes a number of additional arguments about the circuit court’s decision,
but we do not address them because we review LIRC’s decision, rather than the decision of the
circuit court. Operton v. LIRC, 2017 WI 46, ¶18, 375 Wis. 2d 1, 894 N.W.2d 426. To the extent
Paul attempts to raise additional issues about the proceedings before LIRC or the ALJ that are not
specifically addressed in this opinion, we deem those arguments insufficiently developed to
warrant a response. See State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App.
1992) (we need not address undeveloped arguments).

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