BEFORE THE
STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

In the matter of the unemployment benefit claim of

LONNIE M. ECHEVERRIA, Employee

Involving the account of

SEARS ROEBUCK & COMPANY, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 91-603293


On April 5, 1991, the Department of Industry, Labor and Human Relations (Department) issued an Initial Determination finding that the claimant failed to give timely notice of unemployment for week 8 of 1991 and that such failure was not due to an exceptional circumstance. The Initial Determination denied benefits to the claimant for weeks 8 through 12 of 1991. The claimant timely appealed.  On May 30, 1991, a hearing was held before an Administrative Law Judge. On May 31, 1991, the Administrative Law Judge issued his Appeal Tribunal Decision, affirming in part and reversing in part, the Initial Determination. The Appeal Tribunal found that the claimant did not fail to give timely notice of her unemployment for weeks 8 through 11 of 1991 and therefore allowed benefits for those weeks. The Appeal Tribunal Decision did find that the claimant's failure to give timely notice of her unemployment for week 12 of 1991 was not due to an exceptional circumstance and therefore found the claimant ineligible for week 12 of 1991. The Department timely petitioned the Commission for review of the Appeal Tribunal Decision.

Based on the applicable law, records and evidence in this case, the Commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The claimant worked in a clerical position for approximately 12 years for the employer, a retail department store. The claimant was last employed on May 10, 1991 (week 19). She had been employed on a part-time basis of 11 hours per week. The claimant commenced claiming unemployment benefits in January of 1991 and did so properly between week 3 through 7 of 1991.

The issue to be resolved is whether the claimant's failure to give timely notice of her unemployment after the duty arose, for weeks 8 through 12 of 1991, was for an exceptional circumstance that would permit a waiver under the Wisconsin Administrative Code.

The Department mailed a claim card to the claimant for week 8 of 1991 (the week ending February 23), on March 9, 1991. During that week the claimant was partially employed and received her paycheck for week 8 on March 1, 1991. Pursuant to ILHR 129.01(2)(b), Wis. Adm. Code, the claimant must return the claim card within 14 days of the end of the week in question, the date paid for the week in question or, the date the claim card for the week in question is sent (whichever is later). The last date the claimant could have claimed for week 8 was March 23, 14 days from the date the claim card was sent. Since March 23 was a Saturday, the card would still be considered timely if it had been received by Monday, March 25. Notification was not received until after March 25, 1991.

Regarding week 9, the last date the claimant could timely return a claim card was March 22, 14 days from March 8, the day she was paid for work during week 9. Notification was not received until after March 22, 1991. Regarding week 10, the last date the claimant could timely return a claim card was March 29, 14 days from March 15, the day she was paid for work during week 10. Again, the Department did not receive notice until after March 29, 1991.

Regarding week 11, the last date the claimant could timely return a claim card was April 5, 14 days from March 22, the day she was paid for work during week 11. Here, the claimant personally appeared at the UC office on April 3, two days before the last date she could timely return a claim card, indicating timely notice for week 11, 1991. Regarding week 12, the last date the claimant could timely return a claim card was April 12, 14 days from March 29, the day she was paid for her working during week 12. As mentioned, the claimant did appear in person on April 3, 1991 and therefore provided timely notice for week 12.

At the hearing, the claimant explained that she forgot to file a claim card for week 8 of 1991 because she was busy working part-time and her father had Alzheimer's disease. Despite the misfortune of her personal problems, the claimant's explanation does not constitute an exceptional circumstance that would permit a waiver of the timely notice requirement. Moreover, the claimant received a handbook for claimants at the time she initiated her claim in January of 1991 which indicates that claimants have a duty to timely submit their claims within certain time restrictions or to report promptly in person in order to reactivate her claim. After all, the claimant was able to timely notify the Department of her claims during weeks 3 through 7 of 1991.

Therefore, the Commission finds that the claimant's failure to give timely notice of her unemployment for weeks 8 through 10 of 1991, was not due to an exceptional circumstance, within the meaning of sec. 108.08(1) of the Statutes and ILHR 129.01 of the Wisconsin Administrative Code.

The Commission further finds that the claimant was paid benefits in the amount of $137.00 for week 8 of 1991, $135.00 for week 9 of 1991 and $28.00 for week 10 of 1991, amounting to a total of $300.00, for which she is not eligible and to which she was not entitled, within the meaning of sec. 108.03(1) of the Stats. Pursuant to sec. 108.22(8)(a), Stats., she is required to repay such sums to the Unemployment Reserve Fund.

The Commission also finds that the claimant provided timely notice for weeks 11 and 12 of 1991 when she personally appeared at the local office on April 3, 1991.

DECISION

The Appeal Tribunal Decision is reversed in part and affirmed in part, in accordance with the above findings of fact. Accordingly, the claimant is ineligible for benefits during weeks 8 through 10 of 1991 and she is required to repay the sum of $300.00 to the Unemployment Reserve Fund. The claimant is eligible for benefits during weeks 11 and 12 of 1991, if she is otherwise qualified.

Dated and mailed February 4, 1992
135-CD1018  CP 360

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner


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