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

ROY F. TAYLOR, Employee

MILES KIMBALL CO, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02403453AP


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

On June 11, 2002 (week 24), the employee was discharged from his employment as a janitor. He had not filed for unemployment benefits in Wisconsin before and went in person to the Oshkosh Job Service Office. At that time, he was informed that he needed to file for unemployment by telephone. As he did not have his own telephone, he tried to make arrangements whereby he could use a particular telephone and designate that as the number the Unemployment Insurance Division could use to contact him. He did this as of July 2, 2002 (week 27) and immediately telephoned the initial claims system. He also filed a back claim for benefits for weeks 24 through 26 of 2002.

The statutes and administrative code provide that a claimant shall be eligible to begin an unemployment benefit claim only in a week in which he or she has notified the department of an intention to initiate a claim, by telephone, in person, or as otherwise prescribed by the department. This requirement is applicable both to the initial week for which a worker claims benefits and to a week in which a worker seeks to reopen a prior benefit claim, and may be waived if exceptional circumstances exist.

The issue to be decided is whether during weeks 24 through 26 of 2002, the employee failed to timely notify the department of an intention to initiate or to reactivate a benefit claim and, if so, whether the failure was due to any exceptional circumstances which would justify a waiver of the notification requirement.

The employee agreed that he failed to initiate his claim properly during weeks 24 through 26 of 2002. The employee's position is that the failure was due to an exceptional circumstance. The commission disagrees. Examples of exceptional circumstances include error by department personnel, or instructions by an employer not to file a benefit claim, for example. The employee did not make an attempt to find out directly from the department whether he could make arrangements to file even if he did not have a designated telephone. Instead, the claimant assumed, based on what he had been told by other people, that he needed a designated phone to file his claim. The employee thought that there was an unemployment poster at his workplace. This poster should have at least provided the employee with a phone number to contact the department. The poster lists telephone numbers and hours of availability for claims specialists. The employee's failure to take reasonable steps to ensure his claim was filed in a timely manner is not an exceptional circumstance that would justify waiving the notification requirement.

The commission therefore finds that in weeks 24 through 26 of 2002, the employee failed to notify the department of an intention to initiate or to reactive at benefit claim, within the meaning of Wis. Stat. § 108.09(1) and Wis. Admin Code § DWD 129, and that the reasons for the failure do not constitute exceptional circumstances so as to permit waiver of the notification requirement, within the meaning of that section and chapter.

The commission further finds that the employee was paid benefits in the amount for weeks 24 through 26 of 2002, amounting to a total of $354; for which he was not eligible and to which he was not entitled, with in the meaning of Wis. Stat. § 108.03 (1), and pursuant to Wis. Stat. § 108.22 (8)(a), is required to repay such sum to the Unemployment Reserve Fund.

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22 (8)(c), be cause although the over payment did not result from the fault of the employee as provided in Wis. Stat. § 108.04 (13)(f), the overpayment was not the result of a department error. See Wis. Stat. § 108.22 (8)(c)2.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the claimant is ineligible for unemployment insurance in weeks 24 through 26 of 2002. Thereafter, the claimant is eligible for unemployment insurance, if otherwise qualified. The employee is required to repay the sum of $354 to the Unemployment Reserve Fund.

Dated and mailed February 14, 2003
tayloro . urr : 145 : 1  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's testimony was not disputed. Further, the commission did not reverse the ALJ's decision because it disagreed with a credibility assessment that she made but rather, reverses the ALJ's decision as a matter of law.

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will with hold benefits due for future weeks of unemployment in order to off set over payment of U.C. and other special benefit programs that are due to this state, an other state or to the federal government.

Contact the Unemployment Insurance Division, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the over payment.

cc: Roy F. Taylor


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