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

TERRI E CHILDERS, Claimant

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 08600542RC


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 third paragraph of the FINDINGS OF FACT and CONCLUSIONS OF LAW section is deleted, and the following substituted:

The employee did not contact the department to inquire whether she would be eligible for benefits. The record does not show that the employer did not have the required unemployment insurance notice posted in the workplace.

2. The first two sentence of the fourth paragraph of the FINDINGS OF FACT and CONCLUSIONS OF LAW section are deleted.

3. The reference to "weeks 41 through 48" in the first sentence of the fifth paragraph of the FINDINGS OF FACT and CONCLUSIONS OF LAW section is changed to "weeks 41 through 47."

4. The reference to "weeks 41 through 48" in the DECISION section is changed to "weeks 41 through 47."

DECISION

The decision of the administrative law judge, as modified, is affirmed. Accordingly, the employee is ineligible for benefits for weeks 41 through 47 of 2007; but eligible thereafter, if otherwise qualified.

Dated and mailed March 28, 2008
childte . umd : 115 : 1    CP 360

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner


MEMORANDUM OPINION


The claimant's last day of work was October 5, 2007 (week 40).

The claimant initiated her claim for benefits on December 5, 2007 (week 49).

The claimant testified that she waited until December 5 to initiate her claim because she had assumed prior to that date that she would not be eligible, but changed her mind after discussing the circumstances of her separation with her brother.

Wisconsin Administrative Code § DWD 129.01(1) governs initiating a claim, and provides that a claimant is eligible for benefits for any week of unemployment only if, as of the first week being claimed, the claimant notifies the department during that week or within seven 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.

This requirement 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 claiming 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 employee. The employee assumed that the circumstances of her separation would be disqualifying, and made a conscious decision not to initiate a claim as a result. See, Mohamed v. Mens Wearhouse, UI Hearing No. 06604106AP (LIRC Dec. 8, 2006).

As a result, the commission has affirmed the decision of the administrative law judge (ALJ), except as to the weeks of ineligibility. Although the ALJ held that the employee was ineligible, due to the timing of her notice of claim, for weeks 41 through 48, the claimant initiated her claim within seven days after the end of week 48 (December 1), and, as a result, would be eligible for benefits for that week, if otherwise qualified.

Finally, in her petition, the claimant argues that her eligibility for benefits was already resolved in a decision issued by ALJ Glick on January 8, 2008. However, that decision addressed the issue of whether the separation was a quit or a discharge, and whether it occurred under circumstances which would permit the payment of benefits. ALJ Glick held that it was a discharge but not for misconduct and, accordingly, "the employee is eligible for benefits beginning in week 40 of 2007, if otherwise qualified." (emphasis added).

The issue before the commission here, as discussed above, relates to whether the claimant satisfied the requirements for initiating a claim for benefits for weeks 41 through 48. The fact that she failed to initiate a timely claim for weeks 40 through 47 and waiver of this requirement is not merited, would establish that the claimant is not "otherwise qualified" for benefits for weeks 40 through 47.

 

cc: Michael R. Iselen, CPA


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