STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

In the matter of the unemployment benefit claim of

PATRICIA A. SMITH, Employee

Involving the account of

SINAI SAMARITAN MEDICAL CENTER INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 93609982MW


The Department of Industry, Labor and Human Relations issued an initial determination in the above-captioned matter which found that the employe failed to give timely notice of her unemployment for week 46 of 1993, and that such failure was not for an exceptional circumstance. Accordingly, benefits were denied for that week. The employe filed a timely appeal to an appeal tribunal. On January 14, 1994, the appeal tribunal issued a decision which affirmed the initial determination. The employe filed a timely petition for commission review of the adverse 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 employe worked over five years for the employer, a medical center. She was last employed in December of 1992. She was subsequently employed by another hospital up to September of 1993 when she was terminated. She initiated a claim for unemployment benefits in week 41 of 1993, the week ending October 9.

The issue to be resolved is whether the employe gave timely notice of her unemployment for week 45 of 1993 and, if not, was her failure to do so for an exceptional circumstance that is recognized under the Wisconsin Administrative Code to permit a waiver.

The employe received a claim card for week 45 of 1993, but did not submit it in a timely fashion. Accordingly, she received no claim card for the subsequent weeks. She did not file a claim for that week until she appeared at a local unemployment office on December 8, 1993 and filed claims for that week in question, along with subsequent weeks.

The employe was partially unemployed during the week in question while she was working for an apparel shop on a limited part-time basis. For the week ending November 6, 1993 (week 45), she received her pay on November 18, 1993. Under Chapter ILHR 129.01(2)(b) of the Wisconsin Administrative Code she was required to submit a claim within 14 days following the date the employer paid wages for that week. She conceded that she failed to do so. Department records established that her claim for week 46 of 1993 was not received until December 3, 1993.

Since she did not timely give notice of her unemployment for week 45 of 1993, the second issue to be resolved is whether her failure to do so was for an exceptional circumstance that is recognized, under the Wisconsin Administrative Code, to permit a waiver.

The employe alleged that her failure to timely submit her claim card for week 46 of 1993 was the result of her suffering from a state of clinical depression. She was suffering depression as a result of the loss of her job in September of 1993 and did have a short attention span. She demonstrated an inability to take care of routine tasks without the help of a neighbor. Further, the employe submitted a verified letter from her psychologist which indicated that her mental state during the time period at issue affected her concentration and organization.

Based on the employe's testimony and the verified medical documentation submitted by the employe, the commission finds that the employe has established that her mental state was such as to interfere with her ability to meet time deadlines such as those attached to filing timely claims for unemployment.

The commission therefore finds that the employe failed to give timely notice of her unemployment for week 46 of 1993, and that such failure was due to an exceptional circumstance, within the meaning of section 108.08 (1), Stats., and Chapter ILHR 129 of the Wisconsin Administrative Code.

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is eligible for benefits for week 45 of 1993, if she is otherwise qualified.

Dated and mailed April 12, 1994
132 - 1044   CP 360

Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

MEMORANDUM OPINION

The commission did not consult with the administrative law judge regarding witness credibility or demeanor. The administrative law judge found that the employe failed to submit medical documentation in an acceptable form. Since the employe submitted documentation at the hearing, the commission provided the employe the opportunity to have the medical document certified or verified pursuant to section 108.09 (4m), Stats. The employe has provided the necessary verification.


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