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

MARY A HANSON, Claimant

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 11602212MW


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 claimant initiated a claim for unemployment insurance benefits on January 21, 2011, the week ending January 22, and which will end in week 2 of 2012, the week ending January 14. Pursuant to that claim, her weekly benefit rate is $230. On or about February 9, 2011, the claimant contacted the department to inquire as to why her weekly benefit rate was smaller than it had been in a previous claim. A claims specialist discussed the calculations for her active claim and explained that her benefit rate would be higher if she set aside her benefit year and waited until the next calendar quarter to open her claim. The claimant asked if she needed to do so immediately and the claims specialist told her that it was not necessary, but to make the request as soon as possible. The claims specialist did not tell the claimant that it was imperative that she make the request before she was paid benefits. On or about February 11, 2011, the claimant received benefit payments for weeks 4, 5 and 6 of 2011. On or about February 15, 2011, the claimant received a benefit payment for week 7 of 2011. On or about February 17, 2011, the claimant telephoned the department and submitted her request to set aside her benefit year which began on January 21, 2011.

Wis. Stat. § 108.06(2)(d) provides:

(d) A claimant may request that the department set aside a benefit year by filing a written, verbal or electronic request in the manner that the department prescribes by rule. The department shall grant the request and cancel the benefit year if the request is voluntary, benefits have not been paid to the claimant and at the time the department acts upon the request for that benefit year the claimant's benefit eligibility is not suspended. If the claimant does not meet these requirements, the department shall not set aside the benefit year unless the department defines by rule exceptional circumstances in which a claimant may be permitted to set aside a request to establish a benefit year and the claimant qualifies to make such a request under the circumstances described in the rule.

Chapter DWD 129 of the Wisconsin Administrative code provides, in relevant part:

Under s. 108.06 (2) (d), Stats., the department shall grant the claimant's request and cancel the benefit year if the request is voluntary, benefits have not been paid to the claimant, and at the time the department acts upon the request for that benefit year the claimant's benefits eligibility is not suspended. If the claimant does not meet all of the requirements under s. 108.06 (2) (d), Stats., the department may set aside the benefit year if the conditions in both pars. (a) and (b) are met:

(a) The department has recovered, or has waived the recovery of, all benefits paid to the claimant for that benefit year or offsets this amount against benefits the claimant would otherwise be eligible to receive at the time the request to set aside a benefit year is made.

(b) Any of the following exceptional circumstances apply to the claim:

1. The department terminates coverage of an employer previously subject to ch. 108, Stats., for whom the claimant performed services in the base period and the claimant could not have foreseen this termination of coverage.
2. The department makes an error relating to the establishment of the claimant's benefit year.
3. The wage data used by the department to establish the benefit year is erroneous.
4. The claimant established a benefit year in the two weeks immediately preceding the first full week of a new calendar quarter, but a benefit year established as of the first full week of the new calendar quarter would give the claimant a higher weekly benefit rate or a higher maximum benefit amount.                                                                                                                                         5. The claimant's first payment in the benefit year was made after an additional initial claim was filed.
6. The claimant is eligible to start a benefit year in another state.
7. The cancellation of wage credits under s. 108.04 (5), Stats., reduces the claimant's maximum benefit amount to less than 5 times the weekly benefit rate.
8. Other exceptional circumstances exist over which the claimant has no control that are related to establishing a benefit year.

The claimant contended that her request to set aside her benefit year should be granted. The commission agrees. The claimant contacted the department prior to receiving her first benefit payment and was told she could set aside her benefit year. The claimant asked whether she needed to decide right away and was told she could hold off but that she should make the decision as soon as possible. When the claimant asked how long she had to decide the matter she was informed that she should not wait a couple of months to do it. She was never told that she needed to make a decision prior to receiving a benefit payment. While the claimant's situation does not meet any of the specifically listed circumstances that would permit the department to set aside her benefit year, the commission considers this situation to be an exceptional circumstance relating to her benefit year over which she had no control. If she exercised the option to set aside her benefit year the claimant had to go without a benefit check for a substantial period of time. Also, if she had been able to find another job before April, she would not receive any benefits so it is understandable that she would have wanted at some time to make this decision. The department gave the claimant incorrect information relating to her benefit year when it failed to inform her that time was of the essence since she could not set aside her benefit year if she received a payment.

The commission therefore finds that exceptional circumstances exist which justify the claimant's request to set aside her benefit year, within the meaning of Wis. Admin. Code § DWD 129.04(2).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the claimant's request to set aside the benefit year as of week 4 of 2011 is granted.

Dated and Mailed June 30, 2011
hansoma . urr : 145 : 5

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

MEMORANDUM OPINION

The commission did not discuss witness credibility and demeanor with the ALJ who held the hearing. The commission did not reverse the ALJ based on a differing impression of witness credibility but rather, the commission reversed the ALJ's decision as a matter of law.

cc: Attorney Thomas E. Hayes


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


uploaded 2011/08/15