BEFORE THE
STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION


ROBERT E. NAVARRO, Employe

TRUMP'S CUP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 90-606582 RC


The Department issued an Initial Determination on August 16,1990 which held that the employe's failure to have reported in person prior to August 12, 1990 in order to reactivate his benefit claim was not due to an exceptional circumstance, within the meaning of section ILHR 129.01 (3) of the Wisconsin Administrative Code. The employe timely requested a hearing on the determination, and hearing was held September 26, 1990 before Administrative Law Judge Jerome Durski in Racine, Wisconsin. On September 28, 1990, Administrative Law Judge Durski affirmed the Initial Determination. The employe timely petitioned for Commission review of the adverse Appeal Tribunal Decision, and the matter now is ready for disposition.

Based on the applicable law, records, and evidence in this case, and after consultation with the Administrative Law Judge regarding the credibility and demeanor of the witnesses, the Commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe initiated a claim for unemployment benefits in week 20 of 1990, and received unemployment benefits in weeks 20 through 22. On June 8, 190 (week 23), the Department issued an Initial Determination holding that the employe had committed misconduct. On June 13, the employe appealed that determination. Also at this time, the Department ceased sending weekly claim cards to the employe.

On July 13, 1990 (week 28), an Appeal Tribunal Decision was issued reversing the Initial Determination and thus rendering the employe eligible for benefits based upon the claim he initiated in week 20. The employe telephoned the Milwaukee Hearing Office, and was told he would again start receiving claim forms. The employe waited to receive the claim cards, but none came. He again telephoned the Milwaukee Hearing Office and subsequently re-opened his benefit claim.  When he re-opened his benefit claim, on August 14, 1990, he filled out duplicate claim forms (UCB-157 FR's) for weeks 23 through 32 of 1990.

The employe had stopped receiving claim cards after he received his week 22 claim card. In week 23, the Department also had issued the disqualifying Initial Determination, a determination which set aside the employe's benefit year established upon his initial application for benefits. According to a Department representative who testified at hearing, it is customary in such cases, that is, where an initial determination of ineligibility for benefits results in the setting aside of a benefit year, to stop sending claim cards to an employe. Thus far nothing out of the ordinary had occurred with respect to the employe's claim for benefits. Indeed, as he himself testified, it did not seem unusual. that a determination of ineligibility for benefits would also result in a cessation of claim cards from. the Department. On June 13, 1990, however, the employe timely requested a hearing on the misconduct determination. It is at this point where Department error occurred with regard to the employe's claim card for week 23 and subsequent weeks.  The Commission takes notice of the Department's SETC sequence, which in cases like this should be activated, but in this case was not. See, Unemployment Compensation Manual, vol. 1, part 7, ch. 4, p. 8.  This sequence is supposed to be initiated when an employe appeals an adverse Initial Determination, the result of which was the setting aside of a benefit year and an end to claim cards being sent to the employe. The SETC sequence is supposed to result in the employe automatically receiving claim cards again. Department records in this matter indicate, however, that this sequence was not initiated upon the employe's June 13, 1990 appeal of the adverse Initial Determination.

Two of the general requirements for unemployment benefit eligibility are that an employe give timely notice of unemployment and, if a benefit claim is interrupted for some reason, report in person to a public employment office in order to reactivate the benefit claim.  Section ILHR 129.01 (3) of the Wisconsin Administrative Code grants waiver of these requirements if "exceptional circumstances" exist.  That section of the administrative code lists, as one such circumstance, error relating to the claimant's giving of notice made by personnel of the Department. It was error, though, as noted above, for the Department to have failed to continue sending the claimant his weekly claim cards, following his appeal of the June 8, 1990 Initial Determination.  This error clearly relates to the employe's giving of notice, since it is via the weekly claim cards that a claimant gives notice of continued unemployment.

This error also goes to the employe's failure to have reported in person in order to reactivate his benefit claim. He would not have had to report in person had the Department followed its usual procedure and continued mailing claim cards to him upon his appeal of the adverse Initial Determination. The Commission is aware of the various instructions and directives to benefit claimants to the effect that they are to report in person to a public employment office to reactivate or resume their benefit claim, if they stopped filing a claim card or do not file a claim card (for any reason).  Another instruction to claimants, however, is less clear. Claimants are told in the Handbook for Claimants (p. 5) that they will receive a claim card or explanation why a card was not sent by the seventh day after they mailed the previous claim card (or filed their initial application for unemployment).  Claimants are instructed to call their local unemployment office if they do not receive a claim card or explanation.  Based on this instruction, the employe's failure to have contacted the Department when he ceased receiving claim is cards is understandable. Because of the conjunction of his receipt of the disqualifying Initial Determination and the cessation of the claim cards, it was reasonable for the employe to have assumed that the determination holding him ineligible for benefits was the explanation why he was no longer receiving claim cards. The employe also testified, as noted above, that he had contacted the Milwaukee Hearing Office upon the issuance of the July 13, 1990 Appeal Tribunal Decision, and was told he would again start receiving claim forms.  For these reasons, the Commission finds that the employe's failure to report in person to reactive his benefit claim in week 23 through 32 of 1990, was related to an error made by personnel of the Department, an exceptional circumstance as defined by section ILHR 129.01 (3)(c) of the Wisconsin Administrative Code.

DECISION

The Appeal Tribunal Decision is reversed. Accordingly, the employe is eligible for unemployment benefits for weeks 23 through 32 of 1990, if he is otherwise qualified.

Dated and mailed February 22, 1991
105 : CD0860  CP 360  CP 390  PC 714.04

/s/ Kevin C. Potter, Chairman

/s/ Carl W. Thompson, Commissioner

Pamela I. Anderson, Commissioner

NOTE: The Administrative Law Judge had found that no exceptional circumstances were present to justify the employe's failure to have reported in person to reactivate his claim. The Commission, as noted above, held a credibility conference with the Administrative Law Judge in this matter. The primary basis of the Administrative Law Judge's disbelief of the employe was the variance between the employe's testimony and the Administrative Law Judge's understanding of the Department's procedure. The Administrative Law Judge also, but to a lesser extent, disbelieved the employe due to hesitation in some of the employe's testimony. The Commission does not believe there is anything incredible or untrustworthy about the employe's testimony, even granting some hesitation in his testimony, which can also be explained by the fact that he was attempting to communicate a history of several sequences of events, including his filing of claim cards, receipt of unemployment benefit checks, and the various contacts he had had with the Department during that time period.  A party's claim, finally, which if true could constitute a departure by the Department from its usual procedure, cannot for that reason alone be discounted as not credible.  If it could, then provisions such as section ILHR 129.01 (3)(c) of the administrative code would become superfluous, since there then could never be credible evidence that error had occurred, unless admitted by the Department. For these reasons, the Commission must disagree with the credibility assessment in this case.


[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]


uploaded 2001/12/10