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

SUSAN M BURNS, Claimant

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03601605MW


On February 5, 2003, the Department of Workforce Development issued an initial determination which held that the claimant could not set aside her benefit year ending June 28, 2003. The claimant filed a timely request for hearing on the adverse determination, and hearing was held on April 14, 2003 in Milwaukee, Wisconsin before a department administrative law judge. On April 30, 2003, the administrative law judge issued an appeal tribunal decision affirming the initial determination. The claimant filed a timely petition for commission review of the adverse appeal tribunal decision and the matter now is ready for disposition.

Based upon the applicable law and the records and other evidence in the case, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The claimant began a valid new claim in week 27 of 2002. The issue is whether exceptional circumstances, as defined in Wis. Admin. Code § DWD 129.04, allow the claimant to set aside that benefit year and begin it in the following week. The commission concludes that such circumstances are present, and so reverses the appeal tribunal decision.

The claimant began receiving benefits in week 27 of 2002. The department gave the claimant the option of starting her claim in the following week, but did not inform her of the effect of doing so upon her eligibility for TEUC. The claimant received unemployment insurance for weeks 32 of 2002 and 48 of 2002 through 10 of 2003, exhausting her claim in that week. In the interim, the claimant requested that the department set aside her benefit year (in order that the claimant be eligible for TEUC), which request the department refused.

Wisconsin Stat. § 108.06(2)(d) provides as follows:

A claimant may request that the department set aside a benefit year by filing a written, verbal or electronic request in the manner that the department prescribes by rule. The department shall grant the request and cancel the benefit year if the request is voluntary, benefits have not been paid to the claimant and at the time the department acts upon the request for that benefit year the claimant's benefit eligibility is not suspended. If the claimant does not meet these requirements, the department shall not set aside the benefit year unless the department defines by rule exceptional circumstances in which a claimant may be permitted to set aside a request to establish a benefit year and the claimant qualifies to make such a request under the circumstances described in the rule.

Wisconsin Admin. Code § DWD 129.04 provides as follows:

(1) Exceptional Circumstances. Under s. 108.06(2)(d), Stats., a claimant may, in writing, request the department to set aside a benefit year. The department shall set aside the benefit year if all of the requirements of s. 108.06(2)(d), Stats., are met.

(2)  Other Conditions. (a) If the claimant does not meet all of the requirements under sub (1), the department may set aside the benefit year under other conditions. Other conditions include, but are not limited to the following:

1. The department terminates coverage of an employer previously subject to ch. 108, Stats., for whom the claimant performed services in the base period and the claimant could not have foreseen this termination of coverage;
2. The department makes an error relating to the claimant's establishing of a benefit year;
3. The wage data used by the department to establish the benefit year is erroneous; or
4. The claimant elects alternative filing because the claimant's benefit year was established in the last month of a calendar quarter and benefits were paid to the claimant prior to the department advising the claimant to the choice of alternative filing.

(b) The department may not set aside a benefit year under this subsection unless the department:

1. Has recovered, or has waived the recovery of, all benefits paid to the claimant for that benefit year; or
2. Offsets this amount against benefits the claimant would otherwise be eligible to receive at the time the request to set aside a benefit year is made.

Wisconsin Admin. Code § DWD 129.04(2)4 allows alternative filing when a claimant establishes a benefit year in the last month of a calendar quarter and benefits are paid prior to the department's advising the claimant of the choice of alternative filing. While it is true that the department informed the claimant of the choice of alternative filing, yet the information provided to the claimant was incomplete. With a claim effective in week 27 of 2002, the claimant had base period wages of just under $10,000.00, which would render her ineligible for TEUC. With a claim effective in week 28 of 2002, the first week of a new quarter, the claimant would have base period wages of just over $16,000.00, and would be eligible for more than $3,000.00 in TEUC. This is a significant piece of information, and the failure of department personnel to so inform the claimant is an exceptional circumstances justifying a set-aside of the claimant's benefit year.

The commission therefore finds that exceptional circumstances, within the meaning of Wis. Admin. Code § DWD 129.04(2), justifying the claimant's request to set aside her benefit year (and begin it in the following week), are present.

DECISION

The appeal tribunal decision is reversed. Accordingly, the claimant's request to set aside her benefit year is allowed.

Dated and mailed November 3, 2003
burnssu . urr : 105 : 1 CP 395

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision in this case. The commission's reversal is not based upon a differing credibility assessment from that made by the administrative law judge; rather, the commission believes the undisputed facts fall within the definition of exceptional circumstances of Wis. Admin. Code § DWD 129.04(2).


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uploaded 2003/11/10