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

MICHAEL C DE RUBEIS, Employee

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01004655MD


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 claimant initiated a claim for unemployment benefits in week 14 of 2001, the week ending April 7. At that time, he received a claimant handbook that provided claim filing procedures, potential eligibility issues and toll free telephone numbers to call to file claims and seek information from a claims specialist. He explained at the hearing that he had called the continuing claims line on April 8 to file a claim for week 14. After giving his social security and PIN numbers, he was disconnected after a message that he would not be allowed to file a claim. In week 15 of 2001, he received an initial determination that allowed benefits. He nonetheless received the same message upon calling in his claims for several weeks. He discontinued calling thereafter, thinking that his part-time employment had made him ineligible for benefits. Following the completion of his part-time employment, he called the telephone initial claims system on August 14, 2001, to reactivate his claim. At that time, he requested backdating. In a written statement of explanation furnished to the department in response to the inquiry about his late claim, he explained that, after a fact-finding interview with an adjudicator, he had believed that he would not be eligible and had not filed weekly claims.

The statutes provide that to receive benefits for any given week of unemployment, a claimant shall give notice to the department with respect to that week of unemployment, in the manner prescribed by department rules. The rules which implement the statute provide that a claimant shall be eligible for benefits only if a claim is filed by telephone or a weekly certification form is returned to the department for the week in question within 14 days of the mailing of a weekly certification form to the claimant, or within 14 days following the end of the week for which benefits are claimed, whichever occurs later. If the last day for filing falls on a weekend, holiday, or other day on which mail is not delivered, then the claim form is due on the next succeeding business day. This requirement may be waived only if exceptional circumstances exist. The claimant handbook provides specific information about these requirements.

The issue to be decided is whether the claimant gave timely notice to the department concerning the employee's unemployment in weeks 14 through 17 of 2001, and if not, whether the failure to do so was because of any exceptional circumstance which would justify a wavier of the notice requirement.

The claimant contended that his failure to file a timely claim for benefits should be waived. The commission agrees. The department's telephone system would not accept the claimant's claim. In addition, it informed him that he was unable to claim benefits and would hang up on him. It would not let him go through the process. It did not advise him that he needed to speak to a department representative. The claimant believed this was occurring because one of his employers was contesting his claim. In addition, the claimant testified that he had not been on unemployment before, and that he was very confused by the process. The commission finds that it was reasonable for the claimant to believe what the system advised him, that he was unable to file a claim. A more careful or experienced claimant may have immediately sought advice from a department representative, but the claimant's failure to do so in this case is understandable, under the circumstances.

The commission, therefore, finds that for weeks 14 through 17 of 2001, the claimant 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 claimant is eligible for benefits for weeks 14 through 17 of 2001, if he is otherwise qualified.

Dated and mailed December 28, 2001
derubmi . urr : 145 : 8  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 claimant was the only witness in this matter and his 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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