LEANN J WALBECK, Employee

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:

It is undisputed that the claimant initiated her claim and filed claim certifications for weeks 37 through 39 of 2002 on September 30, 2002. These benefit weeks were as follows:

week 37:     September 8-14
week 38:     September 15-21
week 39:     September 22-28

In its initial determination (LID), the department determined that the claimant failed to file timely weekly claim certifications for weeks 37 through 39 of 2002 because "the date that each weekly claim certification was received was not within 14 days after Saturday of the week being claimed."

Two steps are required for filing a claim for unemployment benefits: initiating or reactivating a claim pursuant to Wis. Adm. Code § DWD 129.01(1), and filing a weekly claim certification pursuant to Wis. Adm. Code § DWD 129.01(2). Each of these steps has its own filing requirements.

Wis. Adm. Code § 129.01(2) provides as follows, in relevant part:

A claimant is eligible for benefits for any week of total or partial unemployment only if the claimant files a weekly certification with the department . within 14 days following the end of the week for which benefits are claimed.

Despite the fact that the investigation was limited to the issue of whether the claimant timely filed her weekly claim certifications, the issues noticed for hearing were as follows:

Whether timely notice of unemployment was given to the department by the claimant for any given week(s) and, if not, whether the notice requirement may be waived. (See 108.08 Wis. Stats. and Wis. Adm. Code § DWD 129)

Whether the claimant timely initiated or reactivated a benefit claim and, if not, whether the requirement may be waived. (See 108.08 Wis. Stats. and Wis. Adm. Code § DWD 129)

"Notice of unemployment" is the general heading for Wis. Adm. Code § DWD 129.01. Subsection (1) of 129.01 governs the process for initiating or reactivating a claim, and subsection (2) governs the filing of weekly claim certifications. It is not entirely clear what the first stated issue in the hearing notice is intended to address, but it is clear that the second issue relates to the initiation or reactivation of the claim here which was not the subject of the department's LID.

At the hearing, the administrative law judge (ALJ) stated that issue as follows at the commencement of the hearing:

Whether in week 37 of 2002 (the calendar week ending September 14) and up to the week ending September 28, the claimant failed to timely file claim certifications and her failure was not due to exceptional circumstances.

Despite this statement of the issue, the ALJ decided that the claimant failed to initiate a timely benefit claim for weeks 37 and 38 but did initiate a timely benefit claim for week 39, and did not address the issue of whether the weekly claim certifications were timely filed.

In its petition, the department argues that the issue of the timeliness of the initiation of the claim was not properly before the ALJ and, as a result, is not properly before the commission. The commission agrees.

It is not clear to the commission how the department's decision in the LID was reached. Since the claimant's weekly claim certifications for both weeks 38 and 39 of 2002 were filed within 14 days following the ends of those weeks, i.e., the date of filing (September 30) was 9 days after the end of week 38 (September 21) and 2 days after the end of week 39 (September 28), they should be considered timely filed pursuant to Wis. Adm. Code § 129.01(2); but that, since the certification for week 37 was filed 16 days after the end of that week (September 14), it should be considered untimely filed.

It is also not clear to the commission how the issue stated in the hearing notice was formulated given the language of the LID, i.e., the language of the LID clearly limited its scope to the issue of the timeliness of the claimant's weekly claim certifications, but the issue noticed for hearing included the issue of the timeliness of the initiation of the claim.

It is also not clear to the commission why the ALJ, who stated the issue for hearing as relating solely to the issue of the timeliness of the weekly claim certifications (despite the language of the issues noticed for hearing), proceeded to base her decision on the timeliness of the claimant's initiation of her claim.

The commission concludes that the only issue properly before it relates to the timeliness of the claimant's weekly claim certifications, and that the record shows that the certifications for weeks 38 and 39 were timely filed but not the certification for week 37. The more significant issue here appears to be whether the claimant initiated her claim for weeks 37 through 39 in a timely manner but that, since this issue was apparently not investigated by the department and, as a result, not properly before the ALJ, the commission declines to decide it but remands this matter to the department for investigation.

The decision of the administrative law judge is reversed. Accordingly, based on the timeliness of her weekly claim certifications, the employee is eligible for benefits in weeks 38 and 39, but not week 37. The issue of whether the claimant initiated her claim for weeks 37 through 39 in a timely manner was not properly before the commission and is remanded to the department for investigation.

Dated and mailed June 6, 2003
walbele . urr : 115 : 1   CP 350  CP 360  CP 380  PC 713

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

NOTE: The commission did not consult with the administrative law judge since the decision here relies upon undisputed facts, and the commission's disagreement with the ALJ rests upon a different interpretation of law, not facts.

cc: Gregory A. Frigo, Bureau of Legal Affairs

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uploaded 2003/06/13