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

CYNTHIA SAMPLE, Claimant

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04606005WK


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 claimant started her claim for benefits in week 49 of 2003, the week ending on December 7. For weeks 49, 50 and 51 of 2003, the weeks ending on December 7, 14 and 21 she failed to give timely notice of her claim. Since there was a break in her claim, department rules require that the employee reopen her claim by calling the department. She failed to do so in week 52 of 2003, the week ending on December 27.

The issue to be decided is whether during week 52 of 2003, the employee failed to timely notify the department of an intention to initiate or reactive a benefit claim and, if so, whether the failure was due to any exceptional circumstances which would justify a waiver of the notification requirement.

In this case a department worker informed the claimant that she had to wait to claim benefits until she spoke to an adjudicator about her separation from Mitchell Manor. The claimant's testimony in this respect is undisputed. At the very least, the claimant reasonably misunderstood correct information given to her by the department. The claimant testified that there was background noise when she spoke to the department worker. As such, she asked the department worker to repeat the information and was again told that she was to wait to claim benefits until she spoke to the adjudicator.

The commission therefore finds that in week 52 of 2003 the claimant failed to notify the department of an intention to initiate or to reactivate a benefit claim, within the meaning of Wis. Stat. § 108.08(1) and Wis. Admin. Code § DWD 129 but that the reason for her 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 claimant is eligible for benefits beginning in week 52 of 2003, if otherwise qualified

Dated and mailed March 11, 2005
samplc2 . urr : 145 : 1  CP 360

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

 

NOTE: 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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