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

ERIC G WACHDORF, Claimant

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06002356MD


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 position of the party, 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

As of week 10 of 2006, the claimant had been filing timely weekly claim certifications for unemployment insurance benefits. He previously received a UCB-10 Handbook for Claimants directing him to telephone the department to provide notice of his unemployment within 14 days of the close of the week in which he was seeking benefits.

For the calendar weeks ending March 18 and 25, 2006 (weeks 11 - 12), no weekly claim certifications were completed until April 5, 2006 (week 14). The claimant did not complete weekly certifications for the calendar weeks ending April 1 and 8, 2006 (weeks 13 and 14) because he returned to work in those weeks and was not seeking payment of benefits as of that time.

The issue to be decided is whether, under Wis. Admin. Code Ch. DWD 129, the claimant gave timely notice to the department regarding his unemployment in weeks 11 and 12 of 2006 and, if not, whether the notice requirement should be waived.

The claimant contended that he should be eligible for benefits for weeks 11 and 12 of 2006 under Wis. Admin. Code Ch. DWD 129 because he attempted to complete his claim certifications within 14 days but was prevented from doing so by the telephone claiming system itself and, regardless of the alleged March 31 attempt, that he should receive benefits for week 12 based upon his April 5 certification to the department. The claimant's contention cannot be sustained, in part.

Under the continuing claim requirements set forth in Wis. Admin. Code § DWD 129.01(2)(a) a claimant will be eligible for benefits in a week of unemployment, "only if the claimant files a weekly certification . . . within 14 days following the end of the week for which benefits are claimed." Wis. Admin. Code § DWD 129.01(2)(b)1 further requires that for a weekly certification to be "filed," the claimant must be "notified at the end of the telephone transaction that the weekly certification has been accepted."

Wis. Admin. Code § DWD 129.01(3) RESUMED CLAIMS, explains that a claimant who submits an untimely weekly certification has stopped filing weekly certifications and must comply with the notice provisions set forth in Wis. Admin. Code § DWD 129.01(1) to resume his or her claim.

Wis. Admin. Code § DWD 129.01(1) provides, in relevant part, that a claimant is eligible for benefits

. . . only if, as of the first week being claimed, the claimant notifies the department in person, by telephone if authorized by the department, or as otherwise prescribed by the department, during that week or within 7 days after the close of that week, of the claimant's intent to initiate the claim and complies with the initial and weekly filing procedures as directed by the department. . .

The claimant conceded that he was unable to complete the certifications for weeks 11 and 12 by telephone until April 5, 2006 (week 14). As such, the claimant did not meet the continuing weekly certification requirement for week 11; his certification was not within 14 days of the close of the week. Also, the resumption of his claim and certification that he completed for week 11 on April 5, 2006 (week 14) was not "within 7 days of the close of" week 11. See Wis. Admin. Code § DWD 129.01(1).

Given the claimant's failure to submit a timely weekly certification for week 11, the remaining provision found at Wis. Admin. Code § DWD 129.01(3)(b) must be analyzed to determine whether the April 5 certification for week 12 was under circumstances that allow benefits for that week. Wis. Admin. Code § DWD 129.01(3)(b) provides:

(b) A claimant who submits an untimely weekly certification has stopped filing weekly certifications. A claimant is eligible for benefits for any week falling between the week for which the untimely weekly certification was submitted and the week in which the claimant notifies the department as prescribed in sub. (1) only if the day on which the notification occurs is within 14 days after the close of the week falling between the week for which the untimely weekly certification was submitted and the week in which the claimant notifies the department.

The commission finds that, under the above provision, the claimant is eligible for benefits for week 12 of 2006 because:

(1) April 5 was within 14 days of the close of week 12, and

(2) week 12 was a week that fell between "the week for which the untimely weekly certification was submitted" (week 11) and "the week in which the claimant notifies the department as prescribed in sub. (1)," (week 14).

Finally, with respect to week 11, the commission must determine whether waiver of the reporting requirement is required under Wis. Admin. Code § DWD 129.01(4). Specifically, the reporting requirements are waived "if exceptional circumstances exist" and Wis. Admin. Code § DWD 129.01(4) sets forth the following incomplete list of exceptional circumstances:

(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. DWD120.01.

(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.

Like the administrative law judge, the commission does not credit the claimant's assertion that, at 10:30 p.m. on Friday, March 31, he attempted to file a weekly claim but was prevented from doing so by the telephone claiming system. In particular, in the claimant's initial correspondence with the department regarding his weekly certifications, he explained that his attempts were delayed until after he returned to work and that, after unsuccessfully attempting to complete the claim on Monday and Tuesday, he completed the claim on Wednesday, coinciding with the department's record of contact on Wednesday, April 5. In that and later correspondence, the claimant explained that his septic problem occurred in week 13, then in week 12 with the problem concluding in week 13. He also contradicts whether he attempted claims in weeks 11 and 12, indicating both that he was unable to get through and that he forgot to call. Lastly, he explains that his initial failure to mention the March 31 attempt was based upon his wife's recent reminding him of the call. These inconsistencies bring the employee's March 31 claim into question, especially given the departmental printout reflecting 0.00% busy signals or "system downs" for weeks 10 through 14 of 2006.

Next, while the commission certainly sympathizes with the claimant's situation given the septic problem, it is unclear exactly when it occurred or how it prevented him from completing his weekly claim certifications, either before the problem for week 11, or after it in week 12. In the past, the commission has found that while family emergencies may constitute an exceptional circumstance if the circumstance causes the failure to comply, the commission has found no exceptional circumstance where a claimant failed to show that his presence out of state and consequently, his inability to report in person, was necessary, especially when the claimant asserted that he was available for work on short notice. Tate, UI Dec. Hearing No. 89-400367AP (LIRC May 18, 1989). Also, a claimant who alleged that her failure to timely submit her claim card by mail was due to her part-time employment and her father's Alzheimer's, was found not to have established that the failure was due to exceptional circumstances. Echeverria v. Sears Roebuck & Company, UI Dec. Hearing No. 91-603293 (LIRC February 4, 1992).

The commission therefore finds that in week 11 of 2006, the claimant failed to give timely notice of his unemployment within the meaning of Wis. Stat. § 108.08(1) and Wis. Admin. Code Ch. 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.

The commission further finds that in week 12 of 2006, the claimant did not fail to give timely notice of his unemployment within the meaning of Wis. Stat. § 108.08(1) and Wis. Admin. Code Ch. DWD 129.

DECISION

The decision of the administrative law judge is affirmed in part and reversed in part. Accordingly, the claimant is denied benefits in week 11 of 2006 but is eligible for benefits in week 12 of 2006, if otherwise qualified.

Dated and mailed September 1, 2006
wachder . urr : 150 : 8   CP 360

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


NOTE: The reversal of the appeal tribunal decision with respect to week 12 is as a matter of law and does not involve an assessment of credibility. Consequently, no credibility conference was conducted.


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