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


CINDY L BAAKE, Employe

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99001818MD


An administrative law judge 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 administrative law judge, both at the initial and remand hearings. Based on its review, and after conferring with the administrative law judge who conducted the remand hearing regarding witness credibility, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe initiated a benefit claim in November of 1998, at which time she received a copy of the department's Handbook for Claimants. The employe began full-time work in week 8 of 1999 and, therefore, stopped filing benefit claims. On Wednesday of week 16 her employment ended and she again became eligible for benefits.

On Friday of week 16 the employe attempted to reactivate her benefit claim. She looked in the local telephone directory, and found the telephone number for filing a weekly claim certification. The employe dialed that number numerous times between the hours of 3:00 p.m. and 7:00 p.m., but received a busy signal each time. She then tried another number listed in the telephone directory, the number for claimant information and assistance, but this was also busy. Although the department keeps no statistics with regard to its claim certification line, the evidence indicates that on the day in question the claimant information line was busy about 32.3 percent of the time, substantially more than the usual rate of one to three percent. On Saturday of week 16 the employe again tried the telephone number for weekly claim certification, but was still unable to get through. Although the employe hit the "redial" button on her telephone repeatedly over the course of a few hours, the number was always busy.

In addition to the two numbers listed in the telephone directory, the Handbook for Claimants also contains a third number for filing an initial claim or reopening an existing claim. This would have been the most appropriate number for the employe's situation. However, the employe did not look at the Handbook and did not try this number, which was not listed in her local telephone directory. Had the employe been able to get through at either number she did try, she would have been referred to the telephone number for filing an initial claim. The employe ultimately succeeded in filing her claim in week 17.

The issue to be decided is whether the employe's failure to provide timely notification to the department concerning her unemployment in week 16 of 1999 was due to any exceptional circumstance which would justify a waiver of the notice requirement.

The appeal tribunal found that the employe should have read the instructions in the Handbook for Claimants and called the appropriate number to reactivate her claim. The commission disagrees. While the employe did receive a Handbook for Claimants five months earlier, she was not necessarily obligated to refer to that document in reopening her claim. To the contrary, the employe's actions in consulting her local telephone directory and calling the numbers listed therein were reasonably calculated to ensure that she reactivated her claim in a timely manner and, had she been able to get through at either of the numbers she tried, she would have been referred to the appropriate service line. Under the circumstances, the commission is satisfied that the employe took steps reasonably designed to ensure that the department received notification of her intention to reopen her claim, and her inability to get through on the department's telephone claim system was not a matter which she could have foreseen or that was within her control.

The administrative rules provide for a waiver of the notification requirements if exceptional circumstances exist, including, but not limited to, certain exceptional circumstances specifically enumerated in the administrative code. One of the enumerated exceptional circumstances is an error relating to the claimant's giving of notice made by department personnel. Wis. Admin. Code chapter DWD 129.01(4)(a). While the instant case does not directly involve an error on the part of department personnel, the employe's inability to get through on the department's line was the proximate cause of her failure to reopen her claim in a timely manner, and the department must take responsibility for the fact that its telephone system was inadequate to handle the volume of calls placed to it. Consequently, the commission concludes that the employe's situation constitutes an exceptional circumstance of the type contemplated by the rule.

The commission therefore finds that in week 16 of 1999 the employe failed to give timely notice of unemployment to the department, within the meaning of Wis. Stat. § 108.08(1) and Wis. Admin. Code chapter DWD 129, but that this failure was due to an exceptional circumstance, so as to permit a waiver of the requirement, within the meaning of that section and chapter.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is eligible for benefits in week 16 of 1999, provided she is otherwise qualified.

Dated and mailed October 14, 1999
baakeci.urr : 164 : 1 CP 360

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The administrative law judge who conducted the initial hearing credited the employe's testimony with respect to her efforts to contact the department, but nonetheless found that she had not established an exceptional circumstance for her failure to provide timely notification. For the reasons set forth in the body of the decision, the commission disagrees with that analysis.

The commission did, however, consider it necessary to order further hearing for the taking of additional evidence regarding the employe's efforts to contact the department and to elicit testimony from a department witness regarding the question of whether the employe would have genuinely been unable to reach the department on the days in question. The evidence adduced at the remand hearing indicated that the employe attempted to contact the department on numerous occasions on April 16 and 17 and, further, that at least one of the numbers she attempted to call was unusually busy. The department witness also explained that, had the employe reached the telephone numbers in question, she would have been referred to the appropriate number for initiating a new claim. In a credibility conference following the remand hearing, the administrative law judge indicated that, while she did not put a lot of stock in the employe's recollection of the specific number of attempts to contact the department or times that she called, she did find the employe credible with respect to her testimony that she attempted to get through to the department and was frustrated that she was unable to do so. The commission does not consider it necessary to decide how many times the employe attempted to contact the department or exactly when her attempts occurred. It is clear from the record that the employe attempted to reach the department on numerous occasions, and the commission sees no reason to believe that she did not exercise reasonable diligence in so doing. For this reason, as well as the other reasons set forth in the body of the decision, the commission is satisfied that exceptional circumstances exist justifying the employe's failure to provide timely notification of her unemployment in week 16 of 1999.


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