PATRICK J MCKEON, 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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

The decision of the administrative law judge is affirmed. Accordingly, the claimant is ineligible for benefits for weeks 13 through 24 of 2006.

Dated and mailed December 22, 2006
mckeopa . usd : 115 : 1   CP 360

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

A claimant is eligible under s. 108.08, Stats., for benefit purposes for any week of total or partial unemployment only if, as of the first week being claimed, the claimant notifies 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's claim initiation notice for weeks 13 through 24 was not timely filed within the meaning of this code provision.

The requirement for filing a timely claim initiation notice may be waived, according to Wis. Adm. Code § DWD 129.01(4) if "exceptional circumstances exist." This code provision includes the following five examples, not intended to constitute an exhaustive list, of circumstances considered to be exceptional:

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.

As the commission stated in Vicki Ellenberger, UI Hearing No. 04605629RC (LIRC May 20, 2005), "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'." See, also, Levy v. LIRC et al., Case No. 003-742 (Wis. Cir. Ct. Milwaukee Co., Aug. 29, 1988)(possible exceptions other than those listed in the code provision would require fault on the part of someone other than the claimant jeopardizing the ability of the claimant to receive benefits).

The claimant made a conscious decision, without verifying its ramifications, to forego initiating a timely claim for weeks 13 through 24 because he was under the mistaken impression that, as a professional worker, he would not be eligible for unemployment benefits; because he incorrectly anticipated he would soon be re-employed and the severance pay he had received as a result of the separation would cover his expenses until then; and because, as a matter of principle, he did not believe in claiming benefits unless absolutely necessary.

It was the actions of the employee, not the express or implicit actions of his employer or the department, which resulted in the failure of the claimant to initiate a timely claim for weeks 13 through 24. Misunderstanding the process, misjudging one's employment prospects, or reluctance to collect what one perceives to be benefits intended for the truly needy, do not qualify as exceptional circumstances. See, Levy, supra. (misunderstanding not exceptional circumstance which would allow waiver of requirement); Maynard Dulak, UI Hearing No. 99605679RC (LIRC Nov. 9, 1999); Thomas v. Hurd Millwork Co., Inc., UI Hearing No. 98201821MW (LIRC March 31, 1999) (fact that employee unaware of claim initiation requirement not exceptional circumstance permitting waiver of requirement).

[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]

uploaded 2006/12/27