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


STEVEN C NAPLES, Claimant

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00601319MW


On February 8, 2000, the Department of Workforce Development issued an initial determination which denied the claimant's request to set aside his benefit year ending January 15, 2000. The claimant filed a timely request for hearing on the adverse determination, and hearing was held on March 6, 2000 in Milwaukee, Wisconsin before a department administrative law judge. On March 10, 2000, the administrative law judge issued an appeal tribunal decision affirming the initial determination. The claimant filed a timely petition for commission review of the adverse appeal tribunal decision, and the matter now is ready for disposition.

Based upon the applicable law and the record and other evidence in the case, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The claimant worked approximately seven months for a linen supply service, his last day of work being January 14, 1999. He had filed a claim for unemployment insurance, with a benefit year beginning January 17, 1999 (week 4) and ending January 15, 2000 (week 3). The issue is whether the claimant may withdraw this benefit year and change it to start September 19, 1999 (week 39). The commission concludes that the claimant's circumstances constitute other conditions, within the meaning of Wis. Admin. Code § DWD 129.04(2), such that the claimant may change his benefit year as requested. The commission therefore reverses the appeal tribunal decision in this case.

Wisconsin statute § 108.06(2)(d) states:

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 rules 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.

In this case, the claimant received unemployment insurance for weeks ending September 25, 1999 (week 39) through January 15, 2000 (week 3). He therefore is not eligible to set aside his benefit year pursuant to the statute.

The Department of Workforce Development has, pursuant to the above-quoted statute, defined other conditions pursuant to which a claimant may set aside a benefit year. Wisconsin Administrative Code § DWD 129.04 is as follows:

. . . .(2) OTHER CONDITIONS. (a) If the claimant does not meet all of the requirements under sub. (1), the department may set aside the benefit year under other conditions. Other conditions include, but are not limited to, the following:

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 claimant's establishing of a benefit year;

3. The wage data used by the department to establish the benefit year is erroneous; or

4. the claimant elects alternative filing because the claimant's benefit year was established in the last month of a calendar quarter and benefits were paid to the claimant prior to the department advising the claimant of the choice of alternative filing.

(b) The department may not set aside a benefit year under this subsection unless the department:

1. Has recovered, or has waived the recovery of, all benefits paid to the claimant for that benefit year; or

2. 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.

The above list of conditions, pursuant to which the department may set aside a benefit year, cannot be considered exclusive. This is because the code specifically states that "other conditions," that is, conditions pursuant to which the department can set aside a benefit year, include but are not limited to the expressly stated conditions. The commission has interpreted this provision of the administrative code to include other conditions which are analogous to the expressly stated ones.

So, too, has the department. It has determined that "other conditions" for purposes of setting aside a benefit year include the following:

Unemployment Compensation Manual, Vol. 3, Part VII, Ch. 4, p. 37. The claimant's circumstances meet the first of the above-listed conditions. The claimant established a claim beginning in week 4 of 1999 but did not receive unemployment insurance payments until he reopened his claim in week 39 of 1999. The claimant assumed that his reopened claim was the starting of a new benefit year, and the claimant had no opportunity to compare his then-eligibility with the potential eligibility in a benefit year established in week 39 of 1999. Department records do not indicate, finally, that the claimant was under any suspension which would have precluded the department from granting a request at that time to withdraw the benefit year.

The commission therefore finds that "other conditions," within the meaning of Wis. Admin. Code § DWD 129.04(2), are present such that the claimant may set aside the benefit year beginning January 17, 1999.

DECISION

The appeal tribunal decision is reversed. Accordingly, the claimant's benefit year ending January 15, 2000 (week 3) is set aside. The claimant may establish a benefit year effective week 39 of 1999. This matter is remanded to the Department of Workforce Development for proceedings consistent with this decision.

Dated and mailed April 26, 2000
naplest.urr : 105 : 1  CP 395

/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 before determining to reverse the appeal tribunal decision in this case. Credibility was not a factor in the commission's decision to reverse. Rather, the commission believes as a matter of law that the claimant's circumstances constitute "other conditions" allowing set-aside of a benefit year pursuant to Wis. Admin. Code DWD 129.04(2).


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