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

DANIEL D WEST, Claimant

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03007127MD


On November 9, 2002, the Department of Workforce Development issued an initial determination which held that the claimant's failure to call the telephone initial claims system prior to May 2, 2002 was not due to an exceptional circumstance. The claimant filed a late request for hearing on the adverse determination, which ultimately was held to have been late for a reason beyond his control. Hearing on the "merits" was held on October 22, 2003 in Madison, Wisconsin before a department administrative law judge. On November 17, 2003, the administrative law judge issued an appeal tribunal decision reversing the initial determination. The Department of Workforce Development timely petitioned for commission review of the 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 called the Department of Workforce Development's telephone initial claims system on July 5, 2001 (week 27) to initiate a new claim for unemployment insurance. Department records indicate that the claimant did not complete that claim until May 2, 2002 (week 18), and the issue in this case is whether exceptional circumstances as defined in Wis. Admin. Code § DWD 129.01(4) justify the claimant's delay. The commission concludes that no exceptional circumstances are present, and so reverses the appeal tribunal decision.

By operation of Wis. Admin. Code § DWD 129.01(1), a claimant is eligible for benefits for any week of unemployment "only if, as of the first week being claimed, the claimant notifies the department . . . during that week of the claimant's intent to initiate the claim and complies with the initial and weekly filing procedures as directed by the department." Thus, a claimant's claim can only be successfully completed if the claimant complies with the filing procedures as directed by the department.

There is no question but that the claimant did not complete his claim application on July 5, 2001. Department records so indicate, and the claimant concedes as much. The claimant asserts, though, that his claim was not completed because of computer error, specifically that he was never connected by the telephone claims system with a department claims specialist (for purposes of completing the claim). The dispositive issue in the case therefore is whether an exceptional circumstance justifies the claimant's ten-month delay in completing the claim he began on July 5, 2001.

As indicated above, what constitutes an exceptional circumstance in this context is defined in Wis. Admin. Code § DWD 129.01(4). That code provision states:

(4) 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 claiming unemployment benefits which has been supplied to the employer as required under s. DWD 120.01.
. . .

The only exceptional circumstance relevant to the claimant's case is paragraph (a), specifically the alleged error of the telephone claims system's failure to transfer the claimant to a claims specialist in order to complete his claim. For the following reasons, the commission cannot conclude that this failure constitutes error by department personnel.

The claimant has alleged, in the course of the case, that he was put on hold for two hours (UCB-157), and that he waited on the telephone for more than an hour and 30 minutes, and that he was on hold for over an hour (testimony from a previous hearing on a procedural issue). In other words, what the claimant is really asserting is that he was placed on hold for too long a period of time and simply hung up instead of continuing to stay on hold. The claimant's frustration in this regard is understandable, but it does not constitute error by the department in connection with his claim.

Second, there is no reasonable basis for the claimant to have concluded that he could simply hang up, and not promptly recontact the department, or even do nothing if it in fact were computer malfunction in the claims system which cut off the claimant's call. The system's instructions to claimants who call in include, at the beginning of the script, the statement that "a claims specialist will help complete your claim after you provide information. Your claim will not be complete until you speak to a claims specialist." The system also instructs claimants that, if they cannot complete the claim, they must call back within seven days. Thus, even if the claimant were correct in his assertion that the computer system made an error in cutting him off, that still would be insufficient to constitute an exceptional circumstance, because the claimant's having been cut off is not what caused his late claim. Rather, it was his failure to have recontacted the department within seven days, as he was specifically instructed to do in the event he could not complete his claim via the script the system reads to claimants. While the claimant denied that the script made the statement about contacting the department within seven days, that denial by the claimant is not even remotely plausible.

The commission therefore finds that, in weeks 26 of 2001 through 17 of 2002, the claimant failed to notify the department of an intention to initiate a benefit claim, within the meaning of Wis. Stat. § 108.08(1) and Wis. Admin. Code ch. 129, and that the reason for the failure does not constitute an exceptional circumstances so as to permit waiver of the notification requirement, within the meaning of that statute and administrative code chapter. The commission also finds that the claimant received unemployment insurance benefits in weeks 27 through 49 of 2001 and weeks 10 through 23 of 2002, totaling $4,168.00, for which he was ineligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), he must repay such sum to the Unemployment Reserve Fund. The commission finds, finally, that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c). Although the overpayment did not result from claimant fault as provided in Wis. Stat. § 108.04(13)(f), yet it also was not the result of departmental error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The appeal tribunal decision is reversed. Accordingly, the claimant is ineligible for unemployment insurance benefits in weeks 27 of 2001 through 17 of 2002. He must repay $4,168.00 to the Unemployment Reserve Fund. Department form UCB-700, issued on November 26, 2003, is set aside.

Dated and mailed February 20, 2004
westdan . urr : 105 : 1 CP 360

/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 simply disagrees with the administrative law judge's judgment call that the claimant's delay in initiating his claim was a reasonable misunderstanding of claiming information presented to him by the department.

cc: Gregory Frigo


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