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

KEVIN S BIGSBY, Claimant

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 09004733MD


MODIFIED COMMISSION DECISION


Pursuant to authority granted in Wis. Stat. § 108.09 (6)(c), the Labor and Industry Review Commission orders that the commission decision dated January 26, 2010, be set aside and the following issued in its place:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The claimant was temporarily laid off from his employer, a machine shop, in week 28 of 2009.

The claimant initiated a claim for unemployment insurance via the internet on July 7, 2009. Upon completion of filing his claim he received a message that said, "Your claim is complete and has been accepted for processing." He also received a tracking number for his completed claim. On the same screen on which the tracking number was provided he received the message:

"Remember to file your weekly claim for each week that you are unemployed or your hours are reduced. No payment will be made for a week until after you have filed your weekly claim for that week."

The claimant did not file a weekly claim certification for week 28 of 2009 because he believed that he had already done so. The claimant understood the message about remembering to file his weekly claim as applying to future weeks of unemployment. The claimant was seeking one week of benefits only, and had never filed a previous benefit claim.

The issue to be decided is whether the claimant gave timely notice to the department of his unemployment in week 28 of 2009 and, if not, whether his failure to do so was because of any exceptional circumstance that would justify a waiver of the notice requirement.

Wis. Admin. Code § DWD 129.01(4) provides that the requirement to file a weekly claim can be waived due to a reasonable misunderstanding by the claimant based on information given to the claimant by the department. The information provided to the claimant reminded him to file his weekly claim for benefits every week. However, given that the claimant was claiming only one week of benefits, and had been told that his claim was complete and had been accepted for processing, he could reasonably have understood that message as applying only to ongoing claims.

The commission therefore finds that the claimant failed to file a weekly claim certification for week 28 of 2009, but that the reasons for the failure constituted an exceptional circumstance so as to permit a waiver of the notification requirement, within the meaning of Wis. Stat. § 108.08 and Wis. Admin. Code ch. DWD 129.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the claimant is eligible for benefits in week 28 of 2009, provided he is otherwise qualified.

Dated and mailed April 15, 2010
bigsbyk . urr : 164 : 1 CP 360

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The commission's original decision affirmed the appeal tribunal decision in this matter. However, subsequent to the issuance of that decision the commission conducted a further review of the information provided to claimants when initiating a benefit claim over the internet. Based upon that review, the commission has come to the conclusion that a person who is not versed in unemployment law and procedures could reasonably conclude that, at the point the claim was accepted and a tracking number provided, he had done all he needed to do to receive benefits for one week.

NOTE: The commission did not confer with the administrative law judge about witness credibility and demeanor. The claimant's testimony was unrebutted.


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