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

LINDA K KOPPLIN, Claimant

 

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04005205JF

 


On September 23, 2004, the Department of Workforce Development issued an initial determination which held that the claimant could not set aside her benefit year. The claimant filed a timely request for hearing on the adverse determination, and hearing was held on November 1, 2004 in Jefferson, Wisconsin before a department administrative law judge. On November 5, 2004, 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 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 has worked for nearly ten years as a part-time rural mail carrier for the United States Postal Service. She worked as a full-time substitute for a carrier on leave from February of 2004 through the week ending August 21, 2004 (week 34). In the following week she was scheduled for no work, and she began a claim for unemployment benefits on August 24, 2004 (week 35).

By filing a claim, the claimant established a benefit year. Under Wis. Stat. § 108.02(5), the claimant's benefit year was the 52-week period beginning with week 35 of 2004 and ending with week 34 of 2005. Under Wis. Stat. § 108.02(4), the base period for this claim was the four calendar quarters ending March 31, 2004. The department computed her weekly benefit rate at $158.00 and her maximum amount of at $4,108.00 for that benefit year. She received the benefits of $256.00 for weeks 35 and 36 of 2004 before the department issued the determination under appeal.

The claimant was dissatisfied with the low benefit rate and contacted a claims specialist, who advised her that she might be able to obtain more benefits by canceling the claim she had started in week 35 of 2004 and starting a new claim in the fourth quarter of 2004. In fact, department records show that for a claim started in that quarter (on or after October 3, 2004), she would have a weekly benefit rate of $329.00 and a maximum benefit amount of $6,635.00. After receiving this information, she requested the department to cancel the claim she had started in week 35 of 2004.

The issue to be decided is whether the claimant's request to set aside the benefit year may be granted. The commission concludes that it may, and so reverses the appeal tribunal decision.

On September 6, 2004, the department mailed to the claimant the above-mentioned monetary computation for the claimant's claim. When the claimant received the monetary computation she telephoned a claims specialist and was told she could "close out" her claim and wait until after October 3 to file. If the claimant were able to do so, she would have the higher weekly benefit rate and maximum benefit amount indicated above. The claims specialist told the claimant she could close the claim that day, or call back if she wanted to think about it. In the meantime, on September 7, the day after the department mailed out the monetary computation, it mailed the claimant's benefit check for the first week for which she claimed benefits, week 35.

Where, as here, benefits have been paid as of the time the claimant requests to set aside the benefit year, whether a claimant may do so is governed by Wis. Admin. Code § DWD 129.04(2). That code provision in relevant part is as follows:

(1) EXCEPTIONAL CIRCUMSTANCES. Under s. 108.06(2)(d), Stats., a claimant may, in writing, request the department to set aside benefit year. The department shall set aside the benefit year if the requirements of s. 108.06(2)(d), Stat., 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:

(3) 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 of the choice of alternative filing. . . .

The claimant's circumstances of course do not meet any of the specifically listed circumstances allowing the set-aside of a benefit year. Subsection (2)(a) specifically states, however, essentially that the list is not exclusive. In the present case, the department sent out the monetary computation on September 6 and the claimant's first benefit check the next day. The monetary computation, however, is the document via which the department informs a claimant of the monetary details of the claimant's benefit claim. Until a claimant receives that computation, a claimant will be unable to determine whether it is in the claimant's interests to request that his or her benefit year be set aside and started later. This is a right a claimant has under Wis. Stat. § 108.06(2)(d), and that right is nullified if a benefit check is issued the day after the monetary computation was issued. In such a circumstance, a claimant obviously will not have opportunity to determine whether to request that his or her benefit year be set aside, before the department issues a benefit check in the claim. This lack of opportunity to address one's monetary entitlement must be considered an exceptional circumstance under Wis. Admin. Code § DWD 129.04(2).

The commission therefore finds that exceptional circumstances exists, justifying the claimant's request to set aside her benefit year, within the meaning of Wis. Admin. Code § DWD 129.04(2).

DECISION

The appeal tribunal decision is reversed. Accordingly, the claimant's request to set aside the benefit year beginning in week 35 of 2004 is granted.

Dated and mailed February 18, 2005
kopplli . urr : 105 : 1 CP 395

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, 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 matter. The commission's reversal was not based upon a differing credibility assessment from that made by the administrative law judge. Rather, the commission has concluded as a matter of law that the timing of the issuance of the monetary computation and the claimant's first benefit check constituted an exceptional circumstance allowing set-aside of a benefit year.


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