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


JACKIE W MCGEE, Employe

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99605643MW


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. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe lost his job of 17 years on April 13, 1999 and claimed unemployment benefits through week 21 of 1999, the week ending May 22. On May 22 the employe's daughter was killed in a drive-by shooting while walking to the store, after which time the employe sought psychiatric treatment, began taking medication, and basically withdrew. The employe ceased filing benefit claims at this point. On July 28 (week 31), by which time his daughter's killer had been apprehended and he had talked with his pastor and was feeling less depressed, the employe attempted to claim benefits retroactively for weeks 22 through 27 of 1999.

The issue to be decided is whether the employe's failure to provide timely notification to the department concerning his unemployment in weeks 22 through 27 of 1999 was due to any exceptional circumstance which would justify a waiver of the notice requirement.

The appeal tribunal found that the administrative code does not provide for a waiver of the obligation to file weekly claims due to personal circumstances, especially given that the employe was aware of his obligation to file weekly claims and had done so in the past. However, while chapter DWD 129 of the administrative code does not specifically provide for a waiver due to personal circumstances, the four circumstances enumerated in the rule are not meant to be inclusive, and the commission has previously held that an employe's personal situation can create an exceptional circumstance of the type contemplated by the rule. For example, in Smith v. Sinai Samaritan Medical Center, Inc. (LIRC, April 12, 1994), the commission found that, where an employe was suffering from clinical depression and her mental state was such as to interfere with her ability to meet time deadlines such as those attached to filing timely unemployment claims, an exceptional circumstance was established. The commission has also held that a family emergency can constitute an exceptional circumstance permitting a waiver of the notice requirement. In re Michael Tate (LIRC, May 18, 1989). See, also, Torres v. Council for Spanish Speaking, Inc. (LIRC, June 4, 1991). In the instant case, the employe ceased filing claims because his daughter had just been murdered, and he was depressed and seeking psychiatric care as a result. The commission concludes that the employe's tragic personal situation amounted to an exceptional circumstance which justifies a waiver of the notification requirement.

The commission therefore finds that in weeks 22 through 27 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 weeks 22 through 27 of 1999, provided he is otherwise qualified.

Dated and mailed November 5, 1999
mcgeeja.urr : 164 : 1 CP 360

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

NOTE: The commission did not confer with the administrative law judge regarding witness credibility. The commission's reversal of the appeal tribunal decision is not based upon a differing assessment of witness credibility. Rather, the commission has arrived at a different result when applying the law to essentially the same set of facts as that found by the appeal tribunal.


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