LOWER APPEALS DECISION
|DECISION DATE: July 7, 1982
|CLAIMANT: Thomas A. Tosches
||APPEAL NO.: 07655
|EMPLOYER: Balto. City, Dept. of Public Works
c/o Charles Spinner
|L. O. NO.: 9
Issue: Whether the claimant is receiving or has received a governmental
or other pension, retirement or retired pay, annuity or
other similar periodic payment which is based on any previous
work of such individual, which is equal to or in excess
of his weekly benefit amount, within the meaning of Section
6(g) of the Law.
- NOTICE OF RIGHT TO PETITION FOR REVIEW -
ANY INTERESTED PARTY TO THIS DECISION MAY REQUEST A REVIEW
AND SUCH PETITION FOR REVIEW MAY BE FILED IN ANY EMPLOYMENT
SECURITY OFFICE, OR WITH THE APPEALS DIVISION, ROOM 515,
1100 NORTH EUTAW STREET, BALTIMORE, MARYLAND 21201, EITHER
IN PERSON OR BY MAIL.
THE PERIOD FOR FILING A PETITION FOR REVIEW EXPIRES AT MIDNIGHT
ON July 22, 1982.
|For the Claimant:
Thomas A. Tosches - Claimant
| For the Employer:
Charles Spinner Personnel
FINDINGS OF FACT
The claimant filed an original claim for unemployment insurance
benefits at Towson effective May 2, 1982.
The claimant had been employed by the Department of Public
Works of the City of Baltimore. There was either an abolition
of his job or a RIF, resulting in his displacement from
employment. The claimant was notified that effective May
7, 1982 he would be laid-off as a result of lack of funds.
The claimant elected to accept an early retirement benefit
equivalent to his pay at the rate of $580.46 hi-weekly,
or $15,134 annually. The retirement benefits received
by the claimant are based upon services which he performed
for the City of Baltimore and which contributions were
made in part by the claimant, and in part by his employer,
the City of Baltimore.
At the present time, the benefits which the claimant is receiving
represents his contributions withheld from income, previously taxed.
CONCLUSIONS OF LAW
The claimant was separated from his employment with the City
of Baltimore, Department of Public Works for reasons beyond
his control, without the fault of the claimant, and totally
involuntarily. The claimant would be eligible for the
receipt of unemployment insurance benefits, but for the
receipt of a pension or retirement payment from a base
period employing unit for which he performed services,
i.e. the City of Baltimore. Pursuant to the provisions
of Section 6(g) of the Maryland Unemployment Insurance
Law, an individual shall be disqualified for benefits
for any week with respect to which he is receiving or
has received an amount equal to or in excess of his weekly
benefit amount in the form of a pension, annuity or retirement,
retirement pay under a plan paid for in whole or in part
by a base period employer. Where the individual has performed
services for a base period employing unit which pays some,
but not all, of the cost of such retirement, then the
unemployment insurance weekly benefit amount to which
the claimant may be eligible shall be reduced by ½ of
such payment. Periodic payments shall be pro-rated on
a weekly based and allocated to the period between the periodic payments.
The claimant receives a hi-weekly pension payment of $580.46
based upon a ten-day work cycle. Each month has a minimum
of twenty-one work days. Therefore, the claimant would
receive two payments of $580.46 for twenty work days and
$58.04 for the 21st work day. The total monthly payment
would be $1,218.96. Applying this figure to the contributory
pension chart, such retirement payment pro-rated on a
weekly basis exceeds the claimant's weekly unemployment
insurance benefit amount. Therefore, the determination
of the Claims Examiner was not totally warranted. The
claimant is not entitled to any benefits due to the receipt
of a pension which exceeds his weekly benefit amount.
The Claims Examiner improperly utilized a figure of $1,160
to compute the $6.00 weekly benefit amount to which he
found the claimant to be eligible. Accordingly, the determination
of the Claims Examiner must be affirmed and modified.
The claimant is not eligible for any unemployment insurance
benefits until such time as the City of Baltimore is no
longer a base period employing unit.
It is held that the claimant is receiving or has received
a pension, annuity, retirement or other periodic payment
based on employment during the base period pursuant to
the provisions of Section 6(g) of the Maryland Unemployment
Insurance Law. Benefits are denied for the week ending
May 8, 1982 and thereafter until the claimant is no longer
receiving a pension, or until such time as the City of
Baltimore is no longer the base period employing unit.
As a result of this decision, the claimant has received
benefits to which he was not legally entitled and which
may be recoverable pursuant to the provisions of Section
17(d) of the Maryland Unemployment Insurance Law.
The determination of the Claims Examiner is affirmed and modified accordingly.
Robin L. Brodinsky,
Date of hearing: June 30, 1982
(3438 --- Moody)
Copies mailed to: