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


VICKI V. ELLENBERGER, Claimant

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04605629RC


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. Following receipt of the petition, the commission ordered the taking of additional evidence on November 26, 2004. Pursuant to that order and on behalf of the commission, a hearing was conducted by an Administrative Law Judge on April 11, 2005. Following completion of the hearing, the matter was returned to the commission for disposition.

The commission has considered the petition and the position of the claimant, and it has reviewed the evidence submitted to the ALJ at both hearings. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Prior to April 2004, the claimant filed claims and received unemployment insurance benefits using the Unemployment Insurance (UI) Division's telephone claiming system. To start a claim for benefits, a claimant must file an initial claim, providing information necessary to start the claim process, and then for each week that the claimant wishes to receive benefits the claimant must file a weekly claim, which asks specifically eligibility questions for that week.

On April 19, 2004 (week 17), the claimant reopened a claim for unemployment insurance benefits through the UI Division's Internet Website (http://dwd.wisconsin.gov/ui/).

On the UI Website, claimants can choose to file an initial claim or a weekly claim. Upon completion of an initial claim, a confirmation number is given. No such number is provided upon completion of a weekly claim. Instead, for the weekly claiming system, after answering the necessary questions particular to that week, a summary page is displayed, listing all the questions and answers. If the claimant exits the system before verifying and submitting the information as accurate, neither the claim nor the attempt to claim is recorded. If, instead, the claimant chooses to verify and submit the claim, the claim is complete and accepted. In December 2003 (1),  based upon confusion from claimants who exited the weekly claiming system before submitting and verifying their claims, the Unemployment Insurance Division added language in bold letters at the top of the Internet summary page, warning claimants:

Important - You are not done with your claim. Your claim is not complete until you submit your claim and you receive notice that your claim has been accepted.

The claimant believed she filed a timely weekly claim for the calendar week ending April 17, 2004 (week 16) via the Internet. However, no record of such a claim exists. When the claimant had not received a benefit check for week 16 as of May 9, 2004, she contacted the UI Division. She was informed that no weekly claim existed and, on May 10, 2004 (week 20), she completed a weekly claim for benefits for week 16 of 2004. The claimant also contacted a department representative to discuss her weekly claiming situation; in asserting that she completed a weekly claim for week 16, she argued that she received a claim confirmation number.

The issue to be decided is whether the claimant gave timely notice to the department concerning her unemployment in week 16 of 2004, and if not, whether the failure to do so was because of any exceptional circumstance which would justify a waiver of the notice requirement.

Wis. Stat. § 108.08(1) provides,

To receive benefits for any given week of unemployment, a claimant shall give notice to the department with respect to such week of unemployment within such time and in such manner as the department may by rule prescribe.

Wis. Admin. Code § DWD 129 implements this statutory section and requires filing of (1) an initial claim and (2) a continued claim (weekly claim). As the employee timely filed the initial claim via the Internet, the commission addresses the continued claim requirements. In particular, a claimant must file a continued claim "within 14 days following the end of the week for which benefits are claimed." See, Wis. Admin. Code § DWD 129.01 (2)(a). The claimant's recorded weekly claim was after the 14 day time period. Wis. Admin. Code § DWD 129.01(4) provides as follows:

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 claimant unemployment benefits which has been supplied to the employer as required under s. DWD 120.01.

(d) The claimant performed services as a school year employee in other than an instructional, research or principal administrative capacity and had reasonable assurance of performing services for the employer in a similar capacity in the 2nd academic year or term but was subsequently not offered the opportunity to perform such services.

(e) The claimant made an unsuccessful attempt to access the telephone initial claims system during a week when the system was inoperable or was unavailable for more than 40% of the time the system is scheduled to be staffed by claimstakers during that week. The times during which the system is inoperable or unavailable will be measured as follows:

1. Each day during the week will be divided into half hour time periods, beginning with the time when the system is first scheduled to be staffed by claimstakers and ending with the time when the system is scheduled to no longer be staffed by claimstakers.

2. The system will be considered to be inoperable or unavailable for any such half hour time period during which a busy signal occurs or during which the system is not operating.

The claimant arguably contended that her failure was due to the exceptional circumstance found within (a). Specifically, the employee mistakenly believed her week 16 continued claim had been accepted when it had not, arguing that her failure to verify and submit her claim was due to a "misunderstanding" based upon information provided by the department. The commission disagrees with her contention. While frequent misunderstanding by claimants resulted in a warning being added to the weekly claim summary web page, the claimant filed her weekly claim after that warning was added. The record is lacking any evidence that once the change was made, it was subject to misunderstanding. In fact, the language is quite clear. It appears that the claimant simply did not read the warning and, thus, failed to heed it. This failure was not attributable to the department and does not constitute an exceptional circumstance within the above enumerated exceptions. Additionally, while exceptional circumstances are not limited to the five exceptions, all five involve actions by employers or the department resulting in a claimant's failure. As the claimant's failure was not attributable to either, her circumstances do not fall within the spirit of "exceptional circumstances."

The commission therefore finds that in week 16 of 2004, the claimant failed to give timely notice of her benefit claim within the meaning of Wis. Stat. § 108.08(1) and Wis. Admin. Code § DWD 129, and that the reason for that failure did not constitute an exceptional circumstance so as to permit a waiver of the timely notice requirement, within the meaning of that section and chapter.

DECISION

The decision of the administrative law judge is modified, and as modified, is affirmed. Accordingly, the claimant is ineligible for benefits in week 16 of 2004. Thereafter, the claimant is eligible if otherwise qualified.

Dated and mailed May 20, 2005
ellenvi . urr : 150 : 1 CP 360

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

Robert Glaser, Commissioner

 

NOTE: The commission has modified the appeal tribunal decision based upon additional information obtained at the remand hearing.



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Footnotes:

(1)( Back ) The hearing synopsis reflects a date of December 2004. However, a review of the digital recording of the hearing reflects that the department witness testified that the change took place in December 2003. Then, when the administrative law judge questioned the year as 2004, she was uncertain. Despite this confusion, the department witness clearly testified that in her May 27, 2004 email to the claimant, she referenced this change to the system. Thus, the change was made in December 2003.

 


uploaded 2005/05/23