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

STEVEN R HETZEL, Claimant

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06402303AP


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, except that it makes the following modifications:

1. The first sentence of the first paragraph of the FINDINGS OF FACT and CONCLUSIONS OF LAW section is modified to read as follows:

"The claimant had shoulder surgery on February 1, 2006, and was subsequently off work to recuperate.

2. The fifth sentence of the first paragraph of the FINDINGS OF FACT and CONCLUSIONS OF LAW section, relating to temporary total disability benefits, is deleted.

3. The second sentence of the sixth paragraph of the FINDINGS OF FACT and CONCLUSIONS OF LAW section is deleted.

4. The final two sentences of the sixth paragraph of the FINDINGS OF FACT and CONCLUSIONS OF LAW section are deleted.

DECISION

The decision of the administrative law judge is modified, and as modified, is affirmed. Accordingly, the claimant is ineligible for benefits for weeks 32 through 35 of 2006. The claimant is eligible for benefits beginning in week 36 of 2006, if otherwise qualified.

Dated and mailed December 28, 2006
hetzest . usd : 115 : 1  CP 360

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION


The claimant had shoulder surgery on February 1, 2006, and was on medical leave on and after February 1 as a result.

On August 8 (week 32), the claimant's treating physician released him to return to work with permanent restrictions. However, the claimant was not permitted to return to work by his employer until an independent medical examination (IME) was conducted, and the employer and its insurer had an opportunity to review the IME results.

On August 4, the claimant was provided notice that the IME would be conducted on August 16.

On August 21, the employer's insurer provided notice to the claimant that, effective August 11, based on his treating physician's assessment and restrictions, he would be entitled to monthly partial permanent disability payments. This notice also stated that, "...once the IME report from Dr. Ansari is received we will call to discuss it with you and what will be done at that time."

By letter dated September 5, the employer's insurer indicated that it had reviewed the August 16 IME, and, based on Dr. Ansari's conclusion that the claimant's shoulder impairment had not resulted from a work injury, denied the claimant's workers compensation claim effective September 5.

On September 12, the claimant attempted to initiate a claim for benefits retroactive to week 32, the week he was first released to return to work.

The claimant had successfully applied for, and qualified for, unemployment benefits, for a 10-week period in 2005.

The claimant testified that he had not initiated a claim for benefits in week 32 because "everything was still in limbo."

The informational booklet which the claimant admits he received from the department, although not addressing the claimant's particular situation, does advise that a claim does not start until the week a claimant applies for benefits, a claimant could lose benefits if he waits to file a claim, and a claimant may call a department claims specialist if he has questions.

The claimant apparently decided not to file a claim for benefits after his medical leave ended so that, in the event he was granted workers compensation benefits for this period of time, he would not have to pay all or part of his unemployment benefits back.

The requirement for filing a timely claim initiation notice and weekly claim certifications 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 32 through 35, in order to avoid a possible overpayment if he were eventually to be awarded workers compensation benefits for those weeks. The claimant was aware that his eligibility for these workers compensation benefits was in dispute.

It was the actions of the employee, not the express or implicit actions of his employer or the department, which created the circumstances under consideration here. Apparently, the employee incorrectly assumed, without inquiring, that he could retroactively claim benefits once his workers compensation claim was resolved. Misunderstanding the process does not qualify as an exceptional circumstance. 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).


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