DARLENE M DANN, 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 it has reviewed the evidence submitted to the ALJ. Based on its review, the commission makes the following:

The claimant worked for about fourteen years as a financial specialist for a university. Her last day of work was December 20, 2001 (week 51). She called the telephone initial claim system to initiate a benefit claim on March 10, 2006 (week 10).

The issue to be decided is whether during weeks 15 of 2002 through week 14 of 2003, the claimant failed to timely notify the department of an intention to initiate or to reactivate a benefit claim and, if so, whether the failure was due to any exceptional circumstances which would justify a waiver of the notification requirement.

Wis. Stat. § 108.08(1) provides that in order to receive unemployment insurance benefits for a particular week of unemployment, the claimant should give notice to the department within such time and in such manner as department rules prescribe. Wis. Admin. Code. § DWD 129.01(1) provides that a claimant must notify the department of the claimant's intent to file a claim for unemployment benefits within seven days of the close of the week benefits are first sought. Wis. Admin. Code. § DWD 129.01(4) provides that this requirement may only be waived if exceptional circumstances exist.

Wisconsin 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 claiming 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 claimant 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.

The claimant maintained that she did not notify the department earlier because when she asked her boss if she would be eligible for unemployment, he told her she would not because it was a medical discharge. The employer did not prohibit the claimant from filing a claim. However, the claimant questioned the supervisor about her eligibility. Rather than informing her to contact the department for specific information, he informed her that she would not be eligible for benefits because she was being discharged for medical reasons. The claimant was not unreasonable in relying upon her supervisor's statement. The commission has considered the situation in which a supervisor informs a worker that he or she is ineligible for benefits to be action by the employer instructing, warning or persuading a claimant not to file a benefit claim. See Vissers v. Baumbach, UI Dec. Hearing No. 93202296 EC (LIRC 3/23/94); Dushack v. Goodyear Tire & Rubber Co., UI Dec. Hearing No. 00005110MD (LIRC 12/29/2000); Di Salvo v. AAA Wisconsin, UI Dec. Hearing No. 03008367MD (LIRC April 7, 2004)

The commission therefore finds that in weeks 15 of 2002 through week 14 of 2003, the claimant's failure to notify the department of her intention to initiate a benefit claim was due to exceptional circumstances requiring waiver of the notification requirement, within the meaning of Wis. Stat. § 108.08(1) and Wis. Admin. Code § DWD 129.01.

The decision of the administrative law judge is reversed. Accordingly, the claimant is eligible for benefits in weeks 15 of 2002 through week 14 of 2003, if otherwise qualified.

Dated and mailed July 20, 2006
dannda . urr : 145 : 8  CP 360

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

The commission did not discuss witness credibility and demeanor with the ALJ who held the hearing prior to reversing because the commission did not reverse the ALJ based on a differing credibility impression. Rather, the commission reversed the ALJ as a matter of law.

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uploaded 2006/07/24