KATHY M KRUMMEL, 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 the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission makes the following:

The claimant worked for approximately seven months as custodian for an educational institution. Her last day of work was May 18, 2006 (week 20), when she was laid off.

The claimant initiated a claim for unemployment benefits on June 8, 2006 (week 23). She was sent a UCB-10-P pamphlet, "Claiming Wisconsin Unemployment Benefits" shortly after she filed. Because the employee received severance pay and vacation pay from her employing unit, she did not file weekly claims for benefits for weeks 23 through 26 (the calendar weeks ending June 10 through July 1, 2006). The employer informed her that she would receive additional monies for weeks 27 and 28 (the calendar weeks ending July 8 and July 15, 2006). She did not learn that her entire severance package had been paid out by July 1, 2006 (week 26) until she contacted the employing unit on July 21, 2006 (week 29). At that time, she called the department to reopen her benefit claim and requested that her claim be backdated for weeks 27 and 28.

The issue to be decided is whether during weeks 27 and 28 of 2006, 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.

The statutes provide that to receive benefits for any given week of unemployment a worker shall give notice to the department with respect to that week within the time limits and in the manner prescribed by department rules. The rules implementing the statute provide that any claimant who stops filing claims for one or more weeks of unemployment shall again notify the department of his or her intention to reactive the benefit claim.

The claimant had opened a claim for unemployment benefits in week 23 (the calendar week ending June 10, 2006), but she did not file weekly claims for that week and the three subsequent weeks, because she was receiving a severance package from her last employer. She mistakenly believed she was entitled to additional monies and did not reopen and file claims for weeks 27 and 28 in a timely fashion. A waiver of the time limit is required if there was action by an employer warning or persuading the claimant not to file a benefit claim. The commission has held, in Weber v. Diamond Triumph Auto Glass Inc. (LIRC January 8, 2004), that when an employer misinforms a worker about vacation pay that the worker will receive after his or her last day of work, and the worker relies upon that misinformation by the employer and does not file for benefits, the employer has indirectly persuaded the employee not to file a benefit claim. In the instant case, the claimant failed to take action with respect to her claim because the employer gave her incorrect information about the amount of severance pay and vacation pay that she would be receiving.

The commission therefore finds that in weeks 27 and 28 of 2006, 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 Chapter DWD 129, and that the reason for the failure constituted an exceptional circumstance so as to permit a wavier of the timely notice requirement within the meaning of that section and chapter.

The decision of the administrative law judge is reversed. Accordingly, the claimant is eligible for benefits in week 27 and 28 of 2006, if the claimant is otherwise qualified.

Dated and mailed November 30, 2006
krummka . urr : 145 : 4 CP 360

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

The commission did not consult with the ALJ regarding witness credibility and demeanor. The commission did not reverse the ALJ based on a different assessment of witness credibility and demeanor, as the claimant's testimony was not disputed. However, the commission reached a different conclusion when it applied the law to the facts found by the ALJ.

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