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

JEFFREY S STAUSS, Claimant

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00001485MD

On February 25, 2000, the Department of Workforce Development issued an initial determination which held that the claimant's late claim filing was not due to an exceptional circumstance. The claimant filed a timely request for hearing on the adverse determination, and hearing was held on April 5, 2000 before a department administrative law judge. On April 5, 2000, the administrative law judge issued an appeal tribunal decision reversing the initial determination. The Department of Workforce Development filed a timely petition for review of the appeal tribunal decision, and the matter now is ready for disposition.

Based upon 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 had initiated a claim for unemployment insurance in week 1 of 2000. He subsequently returned to work until week 8 of 2000, when he was laid off. He gave notice to the Department of Workforce Development in week 9 of his week 8 layoff, and the issue is whether the claimant's late notice of reactivation of his benefit claim was due to an exceptional circumstance pursuant to Wis. Admin. Code § DWD 129.01(4). The commission concludes that it was not, and so reverses the appeal tribunal decision.

Generally, a claimant is eligible for unemployment insurance in a given week, only if the claimant has given the Department of Workforce Development notice in that week of his or her unemployment status. This timely reporting requirement may be waived when exceptional circumstances are present. The relevant circumstance in this case is Wis. Admin. Code § DWD 129.01(4)(e):

(e) The claimant made an unsuccessful attempt to access the telephone initial claims system during a week when the system was inoperable or was unavailable for more than 40% of the time the system is scheduled to be staffed by claimstakers during that week. The times during which the system is inoperable or unavailable will be measured as follows:

1. Each day during the week will be divided into half hour time periods, beginning with the time when the system is first scheduled to be staffed by claimstakers and ending with the time when the system is scheduled to no longer be staffed by claimstakers.
2. The system will be considered to be inoperable or unavailable for any such half hour time period during which a busy signal occurs or during which the system is not operating.

Essentially, the telephone claim system must get at least one busy signal in 40 percent of the half-hour increments the system is in operation in a given week, for unsuccessful attempts to justify a finding of exceptional circumstances. Department records indicate, though, that in week 8 there were busy signals in only 5.6 percent of the total number of half-hour increments the system is scheduled to operate.

The claimant attempted to file his claim by telephone once on the Monday of week 8, but got a busy signal. He called one more time, on Tuesday, Wednesday, or Thursday of week 8, and again got a busy signal. Since the telephone initial claims system had busy signals in only approximately 5 percent of the total number of half-hour increments the system was scheduled to operate, however, the claimant's getting busy signals on two occasions does not constitute an exceptional circumstance justifying his late claim.

The commission therefore finds that, in week 8 of 2000, 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 the reasons for the failure do not constitute exceptional circumstances so as to permit waiver of the notification requirement, within the meaning of that section and chapter. The commission also finds that the claimant was paid $297.00 in unemployment insurance for week 8 of 2000, 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 benefit 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), the overpayment also was not the result of departmental error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The appeal tribunal decision is reversed. Accordingly, the claimant is ineligible for unemployment insurance in week 8 of 2000. Thereafter, the claimant is eligible for unemployment insurance, if otherwise qualified. He must repay $297.00 to the Unemployment Reserve Fund.

Dated and mailed July 18, 2000
stausje.urr : 105 : 1 CP 360  PC 714.01

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ 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 not considered the Department of Workforce Development's TIC Busy Signal Report on the ground that no firsthand witness from the department had appeared at hearing to verify the document. The commission does not believe a witness was necessary to verify that document. The commission takes it to be more like a wage or other general information report that lists wages from various employers or wages by quarter earned, for example. As such, administrative law judges may and in fact should take administrative notice of them.

cc: DIRECTOR GREG FRIGO
BUREAU OF LEGAL AFFAIRS

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