STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)


JODY L EVERSON, Employee

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00006394MD


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee initiated a claim for unemployment insurance benefits on March 22, 2000. Thereafter, she filed weekly claims through week 40 of 2000.

The issue to be decided is whether the employee gave timely notice to the department concerning her unemployment in weeks 41 and 42 of 2000, and if not, whether the failure to do so was because of any exceptional circumstance which would justify a waiver of the notice requirement.

Through practice and her receipt of the claimant's handbook, the employee knew how to file weekly claims. She knew that she must file her weekly claim via the telephone claims system within 14 days of the end of the calendar week in which she was claiming. However, in week 39 of 2000, a department determination found that she had been discharged for misconduct connected with her employment. Prior to appealing this determination, she tried to file her weekly claim for week 41 of 2000. The system advised her that she could not complete her weekly claim until she had requalified for benefits which meant earning a certain amount of money and waiting for seven weeks to elapse. She decided not to file her weekly claims for weeks 41 and 42 until after she had a hearing with an administrative law judge involving the misconduct finding.

According to department policy and records, a department representative could have "changed" her inability to file and allowed her to file her claims if the employee would have advised the representative that she was going to appeal the adverse determination and wished to continue filing weekly claims. Unbeknownst to the employee, once she appealed the adverse determination the system would have allowed her to file her weekly claims.

The employee contended that her weekly claims were late due to an exceptional circumstance. The commission agrees. The department's telephone system would not accept the employee's claim. Moreover, it advised her that she was ineligible for benefits until she met certain requalification requirements. It did not instruct her to speak with a department representative if she was going to or had appealed the initial determination. The commission finds that it was reasonable for the employee to believe what the system advised her, that she was unable to file a claim. While it may have been prudent to request advice from a claims representative, her failure to think of this option was understandable, given the circumstances.

The commission therefore finds that for weeks 41 and 42 of 2000, the employee failed to give timely notice of unemployment to the department, within the meaning of Wis. Stat. § 108.08(1) and Wis. Admin. Code ch. DWD 129, and that the reasons for the failure amounted to exceptional circumstances permitting waiver of the timely notice requirement within the meaning of that section and chapter.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits in weeks 41 and 42 of 2000, and thereafter, if she is otherwise qualified.

Dated and mailed March 26, 2001
eversjo . urr : 145 : CP 360

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The commission did not discuss witness credibility and demeanor with the ALJ who held the hearing. The employee was the only witness in this matter and her testimony was not disputed. Rather, the commission reaches a different legal conclusion when applying the law to the facts found by the ALJ.


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uploaded 2001/03/29