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


TROY A BARTZ, Claimant

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00001414MD


On February 18, 2000, the Department of Workforce Development issued an initial determination which held that the claimant's late claim for week 6 of 2000 was not due to an exceptional circumstance. The claimant filed a timely request for hearing on the adverse determination, and hearing was held on March 31, 2000 in Madison, Wisconsin before a department administrative law judge. On March 31, 2000, the administrative law judge issued an appeal tribunal decision reversing the initial determination. The department filed a timely petition for commission 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 in this case attempted, in week 6 of 2000, to initiate a claim for unemployment insurance. He was unable to do so, and the issue is whether his subsequent late filing of a claim for week 6 was due to exceptional circumstances pursuant to Wis. Admin. Code ch. DWD 129. 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. The 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 it may be waived if exceptional circumstances exist.

The claimant first attempted to give notice of his week 6 claim late Friday evening of that week. The claimant could not get through by telephone; there had been work on the telephone lines in the claimant's area, and they were not operational that evening. The claimant tried to call again Saturday morning, again from his phone, but his lines were still down. He tried again Saturday evening, from a pay phone, but at that time the line was busy.

The claimant's circumstances do not constitute exceptional circumstances justifying a late claim for unemployment insurance. Examples of exceptional circumstances include error by department personnel, or instructions by an employer not to file a benefit claim, for example. Inability to get through to the department's telephone claims system can constitute an exceptional circumstance, but only when the failure to have gotten through was due to the department claims system's lines being too busy or "down." That was not the case here; rather, it was the claimant's telephone line which caused the claimant's inability to contact the department's claims system. In such circumstances, the expected solution is for the claimant to get to a telephone in another area in order to timely file his or her claim.

The commission therefore finds that, in week 6 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.

DECISION

The appeal tribunal decision is reversed. Accordingly, the claimant is ineligible for unemployment insurance in week 6 of 2000. Thereafter, the claimant is eligible for unemployment insurance, if otherwise qualified.

Dated and mailed July 18, 2000
bartztr.urr:105 : 6 CP 360

/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 commission's reversal is not based upon a differing credibility assessment from that made by the administrative law judge. Rather, the commission holds that the claimant's circumstances, as he himself testified to them, as a matter of law do not constitute exceptional circumstances justifying the late notice to the department of his week 6 claim for unemployment insurance.

cc: DIRECTOR GREG FRIGO
BUREAU OF LEGAL AFFAIRS


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