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

KIM M BAEHMAN, Employee

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03401409AP


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

The employee worked for the employer, a food processing company. Her last day of work was on or about March 9, 2003 (week 11), when she was informed that the employer had no work for her within her restrictions.

On March 25, 2003 (week 13), the employee contacted the department's telephone initial claims system to reactivate an existing benefit claim. She did not file for unemployment before that date because she was told by her employer that she would be receiving worker's compensation benefits. Her employer informed her on March 25 that she would not receive worker's compensation payments. The employee had previously filed for unemployment in April of 2002 and at that time she received from the department a handbook entitled "Claiming Wisconsin Unemployment Benefits" (UCB-10-P).

The issue to be decided is whether the employee gave timely notice to the department concerning her unemployment in week 11 of 2003 and, if not, whether the failure to do so was because of any exceptional circumstance that would justify a waiver of the notice requirement.

The employee contended that the requirement she give timely notice of her claim for week 11 of 2003 should be waived because she was laid off because of a partial disability to her left hand and was told that she would be receiving worker's compensation as a result. The commission agrees.

Wisconsin Admin. Code § DWD 129.01(4) provides as follows:

WAIVER; EXCEPTIONAL CIRCUMSTANCES. The department shall waive the requirements of this chapter if exceptional circumstances exist. Exceptional circumstances include, but are not limited to, the following:

(a) An error relating to the claimant's giving of notice made by personnel of the department, or a reasonable misunderstanding by the claimant based on information given to the claimant by the department.
(b) Action by an employer, in any manner, directly or indirectly, instructing, warning or persuading the claimant not to file a benefit claim.
(c) The claimant did not comply because the claimant was not aware of the duty to notify the department and the claimant's most recent employer failed to post or maintain any notice as to claimant unemployment benefits which has been supplied to the employer as required under s. DWD 120.01.
(d) The claimant performed services as a school year employee in other than an instructional, research or principal administrative capacity and had reasonable assurance of performing services for the employer in a similar capacity in the 2nd academic year or term but was subsequently not offered the opportunity to perform such services.

In this case the employer informed the employee that she would be receiving worker's compensation benefits because she had sustained a work injury. The employee relied on this misinformation by the employer and did not file for unemployment insurance benefits. The employee filed for unemployment insurance benefits the day that the employer told her that she would not be receiving worker's compensation benefits. While the employer did not specifically tell the employee she should not file for unemployment insurance benefits, it indirectly persuaded the claimant not to file for benefits by incorrectly telling her that she would receive other payments during this time period.

The commission therefore finds that in week 11 of 2003 the employee failed to give timely notice of unemployment to the department, within the meaning of Wis. Stat. § 108.08(1) and Wis. Admin. Code § DWD 129, but that this failure was due to an exceptional circumstance, so as to permit a waiver of the requirement, within the meaning of that section and chapter.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits as of week 11 of 2003, if otherwise qualified.

Dated and mailed October 8, 2003
baehmki . urr : 145 : 1  CP 360

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

The commission did not discuss witness credibility and demeanor with the ALJ but reverses his decision because it reached a different conclusion when applying the law to the facts found by the ALJ.


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uploaded 2003/10/27