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


KEVIN R KEYS, Claimant

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99000611MD



On February 6, 1999, the Department of Workforce Development issued an initial determination which held that the claimant's late notice to the department regarding his unemployment insurance claim was not due to exceptional circumstances. The claimant filed a timely request for hearing on the adverse determination, and hearing was held on March 1, 1999 in Madison, Wisconsin before a department administrative law judge. On March 3, 1999, the administrative law judge issued an appeal tribunal decision reversing the initial determination. The department petitioned for commission review of the appeal tribunal decision and, by June 24, 1999 order, the commission remanded the matter for additional hearing. That hearing was held on July 21, 1999; the matter is again before the commission and now is ready for disposition.

Based on the applicable law and the records and other evidence in the case, and after consultation with the administrative law judge, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The claimant initiated a claim for unemployment insurance in week 19 of 1998, and claimed consecutive weeks of benefits through week 45 of 1998. He then became employed as a nurse for a geriatric care business. He was discharged from that position on or about January 14, 1999 (week 3). He telephoned the initial claims system to reactivate his unemployment on January 27, 1999 (week 5), requesting that his claim be backdated to week 4 of 1999. He did not notify the department earlier of his intention to reactivate a claim because he was dealing with symptoms of depression and alcoholism.

The issue to be decided is whether the claimant's failure to provide notification to the department during week 4 of 1999 of an intention to initiate or to reactivate a benefit claim was due to any exceptional circumstances which would justify a waiver of the notification requirement. The commission concludes that it was not, and so reverses the appeal tribunal decision.

The statutes and administrative code provide that a claimant shall be eligible to begin an unemployment insurance claim only in a week in which he or she has notified the department of an intention to initiate a claim, by telephone, in person, or as otherwise prescribed by the department. This requirement is applicable both to the initial week for which a worker claims benefits and to a week in which a worker seeks to reopen a prior benefit claim, but may be waived if exceptional circumstances exist.

The claimant's asserted defense to the untimely notice of his week 4 of 1999 unemployment is depression. This is a medical diagnosis, however, which must be made by an individual's physician. The commission had remanded the case in order to give the claimant opportunity to submit certified, medical evidence that his depression could have caused the claimant's untimely notice; the administrative law judge also held open the remand hearing record in order to give the claimant further opportunity to submit a certified, medical report as to his condition. As of this date, he still has not done so, and therefore has not established an exceptional circumstance justifying the untimely notice of his week 4 of 1999 unemployment.

The commission therefore finds that, in week 4 of 1999, the claimant failed to notify the department of an intention to initiate or to reactivate a benefit claim, within the meaning of Wis. Stat. § 108.08(1) and Wis. Admin. Code Ch. DWD 129, and that no exceptional circumstances justified the claimant's failure.

The commission also finds that the employe was paid unemployment insurance in the amount of $228.00 for week 4 of 1999, for which he was ineligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), he must repay such sum to the Unemployment Reserve Fund. The commission finds, finally, that waiver of unemployment insurance recovery is not required under Wis. Stat. § 108.22(8)(c). Although the overpayment did not result from claimant fault as provided in Wis. Stat. § 108.04(13)(f), yet the overpayment also was not the result of departmental error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the claimant is ineligible for unemployment insurance in week 4 of 1999. He must repay $228.00 to the Unemployment Reserve Fund.

Dated and mailed October 28, 1999
keyske.urr : 105 : 2  PC 714.10 CP 360

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

NOTE: As indicated above, the commission conferred with the administrative law judge before determining to reverse the appeal tribunal decision in this matter. The administrative law judge had made the judgment that the claimant's anecdotal testimony regarding his depression was sufficient to establish that the depression prevented the claimant from giving timely notice of his week 4 of 1999 unemployment. There have been instances where there was enough such evidence to suffice; in this case, however, the commission believes that that evidence was insufficient to establish that the claimant's depression caused his failure to file a timely claim for week 4 of 1999.

cc:
GREGORY A FRIGO, DIRECTOR
BUREAU OF LEGAL AFFAIRS


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