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

LARRY R POMASL, Employee

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07401805AP


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 employee is ineligible for benefits in weeks 35 through 48 of 2004. Thereafter, the employee is eligible for benefits, if otherwise qualified.

Dated and mailed October 9, 2007
pomasla . usd : 105 : 6   CP 360

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The issue in this case is whether an exceptional circumstance, within the meaning of Wis. Admin. Code § DWD 129.01(4), excuses the employee's failure to have given the Department of Workforce Development the necessary notification of intent to initiate a benefit claim in weeks 35 through 48 of 2004. Exceptional circumstances, as defined by that provision, include: error related to the claimant's giving of notice made by personnel of the department; reasonable misunderstanding by the claimant based on information given to the claimant by the department; action by an employer, in any manner, directly or indirectly, instructing, warning, or persuading the claimant not to file a benefit claim; lack of knowledge of the duty to notify the department, coupled with failure by the claimant's most recent employer to post or maintain necessary unemployment insurance posters; for school year employees, the loss of opportunity to perform services for which the employee previously had received reasonable assurance of performing; and, breakdown of or heavy volume in the telephone claims system. The commission has affirmed the appeal tribunal decision in the case because no evidence establishes the presence of any of these exceptional circumstances.

At hearing, the employee conceded that the employer had posted the necessary informational posters. He conceded as well that there was no error relating to his giving of notice made by department personnel and that he was not asserting reasonable misunderstanding based upon information given him by the department. The last two categories of exceptional circumstances, involving school year employees and failures connected with the operation of the telephone claims system, obviously are inapplicable. The employee's only assertion is that actions by the employer persuaded him not to file his benefit claim earlier than he did. No evidence in the present record establishes any such action by the employer. The employee did not testify to any action or statement by the employer that might have induced him not to file his benefit claim earlier than week 49 of 2004. Further, in his October 19, 2005 interview with department personnel regarding the matter, the employee stated that he was given a letter by the employer regarding severance pay, in which the employer indicated that the pay would be in a lump sum. The employee stated that there was no mention of any so-called allocation of the severance pay, and he also stated that he did not know why he thought he had to wait for the severance pay. There thus is no basis whatsoever in the present hearing record to find an exceptional circumstance justifying the employee's failure to file his claim prior to week 49 of 2004.

The employee's argument is that the necessary evidence is in the record of Pomasl v. The Proctor/Gamble Paper Products Co., UI Dec. Hearing No. 05400280GB (LIRC September 28, 2005). There are two problems with the employee's assertion. First, the two cases are distinct and, absent the employee's having introduced into the record of the present case the record from the 2005 case, the commission is prohibited from considering such. In addition, on the hearing notice the employee received for the present case, is the statement: "This hearing is your only opportunity to present documents and testimony as evidence in this case. Any future review of this case is based upon the record made at this hearing." It thus was unreasonable for the employee to assume that the administrative law judge (or the commission) would automatically consider the evidentiary record from the 2005 case.

The commission does have the authority, in extraordinary circumstances, to order further hearing in a case, and it has examined the record in the 2005 case to see whether a remand for additional hearing in the present case is in order. It is not. The record in the previous case establishes only that, at the February 15, 2005 hearing in that case, the employee and employer were discussing whether the employee's severance pay had been allocated and when such allocation would end. Any discussions in February of 2005, though, are irrelevant to whether an exceptional circumstance existed in weeks 36 through 48 of 2004. Finally, Wis. Stat. § 108.05(5) gives employers the express right to allocate an employee's dismissal or termination pay, for the purpose of treating such pay as wages for a given week. An employer's exercise of this statutory right, without more, does not constitute an exceptional circumstance justifying a failure to timely file a claim.

For these reasons, and for those stated in the appeal tribunal decision, the commission has affirmed that decision.



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