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

JACOB Q OMERNIK, Claimant

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 09003641MD


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 it has reviewed the evidence submitted to the ALJ. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The issue to be decided is whether the claimant gave timely notice to the department concerning the claimant's unemployment in week 15 of 2009 and, if not, whether the failure to do so was because of any exceptional circumstance which would justify a waiver of the notice requirement.

The claimant was off work for one week due to a mandatory lay off in week 15 of 2009. The claimant filed an initial application for benefits on April 13, 2009, seeking benefits for week 15 of 2009. The claimant filed his weekly claim for that week on June 5, 2009.

The claimant received and read the Handbook for Claimants. When the claimant filed his claim over the internet he received the following message:

Your claim is complete. It is not necessary to that you speak to a claims specialist. Remember to file your weekly claim for each week you are unemployed or your hours are reduced.

The above information was followed by a tracking number. The claimant concluded from the above information that he had completed all steps necessary to receive benefits for the week. He did not correct his error until June 5, 2009, more than 14 days after the week ended.

The claimant did not file a timely weekly claim because he misunderstood the information provided by the department on the internet and in the Handbook for Claimants. The employee believed that the reminders to file a weekly claim pertained to any additional weeks he wanted to receive benefits. Wis. Admin. Code § DWD 129.01(4) provides that the requirement to file a weekly claim can be waived based on a reasonable misunderstanding by the claimant based on information given to the claimant by the department. Having reviewed the information provided to the claimant, the commission cannot conclude that his interpretation of that information was unreasonable.

The commission therefore finds that for week 15 of 2009, the employee failed to file a weekly claim certification, within the meaning of Wis. Stat. § 108.08 and Wis. Admin. Code ch. DWD 129, but the reasons for that failure constituted an exceptional circumstance so as to permit a waiver of the notification requirement, within the meaning of that section and chapter.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits in week 15 of 2009, if he is otherwise qualified.

Dated and mailed November 30, 2009
omernja : 132 : 5 : CP 390  CP 380

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner


MEMORANDUM OPINION

The commission did not consult with the ALJ who presided at the hearing regarding witness credibility. The employee's testimony was unrebutted. The commission disagrees with the ALJ that the employee's failure to file a timely weekly certification reflected a failure to carefully read information provided. As stated above, after reviewing the information provided the commission believes one not particularly versed in unemployment law and procedures could reasonably conclude that in the first week of unemployment a claimant must file an initial application, and in each week thereafter file a weekly claim.


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