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

TIMOTHY E DONEY, Claimant

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07001316LX


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.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the claimant is ineligible for benefits in week 5 of 2007.

Dated and mailed June 14, 2007
doneyti . usd : 115 : 1   CP 360

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner



MEMORANDUM OPINION


On February 2, 2007, the claimant filed a timely claim certification for week 4 of 2007 and reported his earnings. He subsequently received correspondence from the department dated February 3, 2007, providing notice that no benefits were payable for "week 04/07" because his reported earnings reduced the amount of his benefit for that week to less than five dollars.

The claimant misunderstood this correspondence to mean that he was no longer eligible for benefits for any future week because his account had been depleted. As a result, he did not file a timely claim certification for week 5 of 2007, a week during which he did not work due to layoff.

The requirement for filing 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 only failure here is attributable to the claimant. The claimant did not file a timely claim certification for week 5 of 2007 because he mistakenly assumed that he had exhausted his benefit eligibility based upon the department's notice to him that he had earned too much in week 4 of 2007 to qualify for benefits.

A misunderstanding such as this 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).

The claimant argues in his petition that, when he filed his claim certification on February 2, he "just filed for the wrong week," presumably meaning that he had actually intended to file for week 5, not week 4, on that date. According to his hearing testimony, however, the claimant was aware that weekly claim certifications were to be filed after the end of the week for which benefits were being claimed. Week 5 ended on February 3, the day after the claimant filed his February 2 claim certification, and the claimant, as a result, would not have been filing a claim for week 5 instead of week 4 at that time.

The claimant also references in his petition the fact that he talked to a representative of the department, apparently intending to invoke the exception stated in Wis. Adm. Code § DWD 129.01(4)(a), i.e., that his misunderstanding was reasonable given the information provided to him by the department. However, the record does not show that a department representative ever provided advice to the claimant which would reasonably have led him to believe that he was ineligible for benefits after week 4 of 2007 or did not need to file a timely claim certification for week 5 of 2007 in order to be eligible for benefits for that week.

Finally, the claimant appears to argue in his petition that the fact that the correspondence from the department was dated "5-7" led him to believe that a decision had been made that he was not eligible for benefits for week 5 of 2007. However, this correspondence (exhibit #1) is dated "02/03/07," and states that "no benefits can be paid for week 04/07" because the claimant's wages for that week reduced the amount of his benefit to less than five dollars.

The claimant has failed to demonstrate that his claim certification for week 5 of 2007 was untimely filed due to exceptional circumstances.



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


uploaded 2007/06/18