BEFORE THE
STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

In the matter of the unemployment benefit claim of

LUZ D. TORRES, Employee

Involving the account of

COUNCIL FOR SPANISH SPEAKING, INC., Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 90-606105


Pursuant to the timely petition for review filed in the above-captioned matter, the Commission has considered the petition and all relief requested. The Commission has reviewed the applicable records and evidence and finds that the Appeal Tribunal's findings of fact and conclusions of law are supported thereby, and adopts such findings and conclusions as its own, except as herewith modified:

1. Paragraphs three through seven of the Appeal Tribunal's FINDINGS OF FACT AND CONCLUSIONS OF LAW are deleted, and the following is substituted therefor:

"The employe's benefit year ended as of week 25 of 1990. As of week 26 of 1990, therefore, the employe had to establish a new benefit year. Pursuant to section 108.06 (2)(a) of the Statutes and section ILHR 129.02 (1)(a) of the Wisconsin Administrative Code, a claimant, in order to establish a benefit year, must report in person to the local office to complete and sign a claim for benefits. Section ILHR 129.03 (2) of the administrative code lists circumstances in which a claimant will be allowed to 'backdate' a benefit claim or, in other words, be excused from the requirement that one report in person to initiate his or her benefit claim. The sole circumstance relevant in this case is that a circumstance beyond the control of the claimant exist.

"In this case, such a circumstance existed. The employe had reported to her local unemployment office on June 18, in order to initiate her claim for benefits. She received a claim card, and returned it to the Department on June 23. On June 24 she received notice that her oldest sister was very ill, and left that day for Puerto Rico, in order to be with her sister. On June 29 or 30, the employe's son telephoned the employe and informed her of a notice from the Department that she had to report in person to her unemployment office. The employe, told her son to call the unemployment office and inform the Department that she was out of town. The employe thus did not receive notice that she had to report in person until she already was in Puerto Rico.

"The record in this matter indicates that the employe's sister was very ill. In addition to the employe's testimony to that effect, the employe left for Puerto Rico the same day she received notice of her sister's illness. The employe also testified that her sister was like a mother to the employe, which indicates a closeness in the relationship between the employe and her sister not generally found in relationships between siblings. The illness of the sister was such that the employe remained in Puerto Rico longer than she had intended.

"It has been suggested that the employe could have reported to an unemployment office near where she was staying in Puerto Rico. It is not clear, though, that the employe should have known she was supposed to or could report there. On page 7 of the Handbook for Claimants, claimants are instructed that they occasionally will be required to report in person 'to the location where you file your claim.' Claimants are instructed further that, if they are unable to report, they are to call their local office as soon as possible and explain why. These directives by their terms cover only the unemployment office where claimants filed their claim. In the employe's case, however, that was in Milwaukee, Wisconsin. In addition, as noted above, the employe did tell her son to inform the Department that she was out of town. For these reasons, the illness of the employe's sister was a circumstance beyond the control of the claimant, justifying her failure to have reported in person in week 26 of 1990.

"This matter still must be remanded to the Department for further investigation and determination. An unemployment claimant must always be generally able to and available for work, even where, as here, a claimant's work search has been waived. The employe's extended absence from her home area, coupled with the reason therefor, raise the issue of her general attachment to the labor market during the time period in question. It is not the case, however, as the dissent implies, that such circumstances as a matter of law require a finding that a claimant is unavailable for work. The Department is obligated to investigate and resolve all issues pertaining to an employe's eligibility for benefits of which the Department becomes aware; this matter thus must be remanded to the Department for investigation of and decision on the employe's availability for work within the meaning of section 108.04 (2)(a) of the Statutes."

DECISION

The Appeal Tribunal Decision is modified to accord with the-foregoing and, as modified, is affirmed. Accordingly, the employe is eligible for unemployment benefits for weeks 26 through 31 of 1990, if she is otherwise qualified. This matter is remanded to the Department for investigation of and decision on the issue of the employe's availability for work within the meaning of section 108.04 (2)(a) of the Statutes.

Dated and mailed June 4, 1991
105 - CD1006  CP 350

/s/ Kevin C. Potter, Chairman

/s/ Carl W. Thompson, Commissioner

 


PAMELA I. ANDERSON, COMMISSIONER (Dissenting):

I am unable to agree with the result reached by the majority herein and I dissent.

I believe that ILHR 129.03 (2) which allows a claimant to file a claim late and backdate it relates to circumstances beyond control that are due to department or employer actions. I do not agree with the majority that circumstances beyond control include family emergencies. I believe that a policy reason why circumstances beyond control do not apply to family emergencies is that if the employe is able to get past that hurdle, they will lose at the next hurdle which is able and available for work. If the family emergency was serious enough that the employe could not report to the local office, then the employe would not be able and available for suitable work. I am sympathetic to the employe's dilemma and I understand why she would want to be with her sister but I find that it is a cruel hoax to send the case back only to have her lose on the able and available question.

I am convinced that the reason that ILHR 129.03 (2) lists the exceptions that it does are because the Legislature wanted to deal with cases where the employe is misled by the department or the employer and that is the cause of the employe's late filing.

For these reasons, I would reverse and deny.

/s/ Pamela I. Anderson, Commissioner

cc: 
Glenn E. Kelley, Director
DILHR, BOLA


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