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McNally v Stanford Brothers 16.55

Section 32a

PROCEDURE, Appeal, Restitution

CITE AS: McNally v Stanford Brothers, unpublished per curiam Court of Appeals, January 12, 1996, (No. 166182).

Appeal pending: No

Claimant: Jerome McNally

Employer: Stanford Brothers, Inc.

Docket No. B91-04367-119700W

COURT OF APPEALS HOLDING: Where the claimant has not committed fraud, where there is no administrative clerical error, and where the employer failed to protest within the thirty day protest period, the claimant is not liable for restitution of benefits paid prior to the employer's protest

FACTS: The employer failed to timely protest a redetermination which held the claimant not disqualified. On appeal to the Referee, the employer established good cause for reconsideration of the redetermination because the MESC failed to send the redetermination to the employer's address of record. The claimant was not present at the Referee hearing. The Referee held the claimant disqualified for voluntarily leaving his employment without good cause attributable to the employer and ordered the claimant to pay restitution. The circuit court affirmed on the merits but held, pursuant to Section 32a(3) that claimant was not required to make restitution.

DECISION: The claimant is not liable for restitution for benefits paid to him prior to the Commission's receipt of the employer's untimely protest.

RATIONALE: The MESC may reconsider a prior determination or redetermination if good cause is shown. But where that reconsideration disqualifies an individual from receiving benefits, it does not apply to the period for which benefits were already paid. "The claimant had a right to believe the matter was concluded after the thirty-day appeal period had expired. To order him to repay the benefits, months later, would be unconscionable."


20, 19: J

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