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


ORDER

Pursuant to authority granted in Wis. Stat. § 108.09(6)(d), the commission remands this matter for further hearing before Administrative Law Judge Ottenstein, acting on the commission's behalf. The issue for the remand hearing is the employe's defense of depression. The commission believes the employe's proof at the original hearing of his depression was insufficient. Generally, the commission and department require that such matters be proven by certified, medical evidence, such as by a UCB-474. The employe should have opportunity to submit such documentation as to his medical condition.

The department petitioned for commission review of the appeal tribunal decision in this case, arguing that depression does not constitute an "exceptional circumstance" justifying late notice to the department. The commission has held, however, that depression "such as to interfere with [one's] ability to meet time deadlines such as those attached to filing timely claims for unemployment" can constitute an exceptional circumstance under Wis. Admin. Code § DWD 128.01.  See Smith v. Sinai Samaritan Medical Center, Inc., Hearing No. 93609982MW (LIRC 4-12-94).

Dated and mailed June 24, 1999
keyskev.usd : 105 : 1 CP 360

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


NOTE: The dissent argues that the majority is greatly expanding the nature of exceptional circumstances for untimely notice of unemployment. In so arguing, the dissent ignores prior commission precedent, cited in the order itself, regarding what can constitute an exceptional circumstance. The commission has also held that a family emergency can constitute an exceptional circumstance under certain circumstances. See Torres v. Council for Spanish Speaking, Inc., Hearing No. 90-606105 MW (LIRC 6- 4-91). The dissent also ignores language in the Department Workforce Development's own Unemployment Compensation Manual suggesting that depression could constitute an exceptional circumstance. The manual includes as an exceptional circumstance a "circumstance beyond the control of the claimant, circumstances which the claimant has no power to change or alter." Depression can fit within that category. The dissent ignores, finally, a 1989 commission decision in which the dissent joined, which states that a family emergency can constitute an exceptional circumstance. See In Re Tate, Hearing No. 89-400367 AP (LIRC 5-18-89).

 

PAMELA I. ANDERSON, COMMISSIONER (dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. DWD 129.01(4) "WAIVER; EXCEPTIONAL CIRCUMSTANCES. The department shall waive the requirements of this chapter if exceptional circumstances exist. Exceptional circumstances include, but are not limited to, the following: (a) An error relating to the claimant'' giving of notice made by personnel of the department, or a reasonable misunderstanding by the claimant based on information given to the claimant by the department. (b) Action by an employer, in any manner, directly or indirectly, instructing, warning or persuading the claimant not to file a benefit claim. (c) The claimant did not comply because the claimant was not aware of the duty to notify the department and the claimant's most recent employer failed to post or maintain any notice as to claiming unemployment benefits which has been supplied to the employer as required under s. DWD 120.01. (d) The claimant performed services as a school year employe in other than an instructional, research or principal administrative capacity and had reasonable assurance of performing services for the employer in a similar capcity in the 2nd academic year or term but was subsequently not offered the opportunity to perform such services.

All of the enumerated exceptions fall into categories of something the department or the employer did or failed to do which was responsible in some way for the employe not giving notice of their unemployment. In the past, this administrative rule also included sections on the absence of a previously scheduled claimstaking facility and the claimant's inability to use the claimstaking facility because of lack or failure of transportation facilities on which the claimant may have reasonably relied or because the claimant was employed. These sections were dropped because claims are now filed by telephone.

What the majority is doing is greatly expanding the nature of exceptional circumstances. Personal reasons that explain why the employe did not file their notice in a timely fashion usually raise a question as to whether the employe is able and available for work. I believe the reason medical reasons have not been found to be exceptional circumstances is that if the medical circumstances prevent the person from filing their notice of unemployment in a timely fashion, the person would also be unable or unavailable for work in that week.

The commission has allowed depression to be used as a reason beyond control for a late appeal or petition when there is sufficient medical testimony establishing that the employe was unable to file during the appeal period.

In this specific case, the employe testified "I did not initially call in because the first week after my termination I was waiting for a letter from my employer informing me of the reason I was terminated. I did not even know if I would qualify for unemployment. I was also very depressed about the fact I was let go. Those were the main reasons I did not jump on that right away.The employer's rep had not said anything to me concerning unemployment. It was my decision to wait to see what the letter said. I was not sure if I would be qualified based on the reason for the discharge."

The employe says "In regard to what symptoms I had in week 4 1999, I increased the number of AA meetings I went to because I was so devastated and I was tending to isolate myself.I've been clean and sober now for 2 years so in that respect I am doing fine."

I believe the reason the employe did not give notice of his unemployment is because he was waiting for the letter from the employer to see if he would be eligible for benefits. The employe does not say he was unable to call the department. He knew the phone number from his last claim.

On this record, I do not see that the employe has an exceptional circumstance and if he gets a medical opinion that he was so depressed that he could not file a claim, I would find that he was not able and available for work. For these reasons, I would reverse the administrative law judge and find no exceptional circumstance and dismiss.

__________________________________
Pamela I. Anderson, Commissioner

cc: 
Gregory A Frigo
Bureau of Legal Affairs


[Subsequent LIRC decision in this case]

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