SANDRA J KIEFFER, Claimant

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:

The claimant initiated a claim for unemployment benefits on July 8, 2003 (week 28) during a one-week lay off due to a lack of work. She received from the department the claims instructional booklet shortly thereafter. She attempted to file her weekly claims certification on July 15 for the week of July 6 through 12 (week 28), using her cell phone. She heard a lot of static and sometimes had to guess what the recording was telling her. She had no recollection of the recording instructing her not to hang up until her claim was accepted. She thought she had completed her claim certification for that week. When she later learned that her co-workers had received their unemployment checks, she contacted the department and filed a late weekly claim certification on August 8, 2003 for week 28 of 2003.

The issue to be decided is whether the claimant gave timely notice to the department concerning her unemployment in week 28 of 2003, and if not, whether the failure to do so was because of any exceptional circumstance which would justify a waiver of the notice requirement.

The statutes provide that to receive benefits for any given week of unemployment, a claimant shall give notice to the department with respect to that week of unemployment, in the manner prescribed by department rules. The rules which implement the statute provide that a claimant shall be eligible for benefits only if a claim is filed by telephone or a weekly certification form is returned to the department for the week in question within 14 days of the mailing of a weekly certification form to the claimant, or within 14 days following the end of the week for which benefits are claimed, whichever occurs later. If the last day for filing falls on a weekend, holiday, or other day on which mail is not delivered, then the claim form is due on the next succeeding business day. This requirement may be waived only if exceptional circumstances exist.

The claimant contended that she made a reasonable effort to complete her weekly claim certification on a timely basis. The commission agrees. The claimant contacted the department and filed her claim. For some unknown reason, the claim certification was apparently not accepted. As such, the claimant's failure to give timely notice was due to an exceptional circumstance which would justify a waiver of the timely notice requirement.

The commission therefore finds that in week 28 of 2003, the claimant failed to give timely notice of her intent to initiate a benefit claim within the meaning of Wis. Stat. § 108.08(1) and Wis. Admin. Code ch. DWD 129, but that the reason for that failure constituted an exceptional circumstance so as to permit a waiver of the timely notice requirement, within the meaning of that section and chapter.

The decision of the administrative law judge is reversed. Accordingly, the claimant is eligible for benefits in week 28 of 2003, if otherwise qualified.

Dated and mailed May 21, 2004
kieffsa . urr : 145 : 1 CP 360

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

NOTE: The commission did not consult with the ALJ regarding witness credibility and demeanor. The commission does not disagree with any credibility determination made by the ALJ but has reversed the ALJ's decision based on the claimant's undisputed testimony.

[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]

uploaded 2004/05/24