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


JAMES H SCHESSLER, Claimant

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98003724MD


On September 1, 1998, the Department of Workforce Development issued an initial determination which held that the claimant's failure to file a timely weekly claim certification for week 32 of 1998 was not due to exceptional circumstances. The claimant filed a timely request for hearing on the adverse determination, and hearing was held on September 30, 1998 in Madison, Wisconsin before a department administrative law judge. On October 2, 1998, 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 records and other evidence in the case, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The claimant in this case was late in filing a claim for unemployment insurance for week 32 of 1998. The issue is whether an exceptional circumstance, within the meaning of Wis. Admin. Code DWD 129.01(4), excuse the claimant's late filing. The commission believes exceptional circumstances exist with regard to the late filing, and so reverses the appeal tribunal decision. The claimant had called in his week 31 claim on August 4, the Tuesday of week 32. The claimant indicated that he had not looked for work that week. He so indicated because he had accepted a job with Miller Construction, to begin the following week (week 33). Based upon his answer to the question, a department representative telephoned him to ask him about his statement. The claimant mentioned to the department representative contacts the claimant had had with three employers on August 3 and with Miller Construction on August 4. The department representative indicated he would make that change on the claimant's reports.

The claimant asked the department representative if he would have to call the following week (week 33) to indicate that he was closing his claim. The department representative said that the claimant would not have to do so, that by not calling in the claimant would be showing he was back to work. When the claimant subsequently did not receive benefits for week 32, he filed a late claim.

It is a general eligibility requirement that claims be filed in a timely manner. Waiver of this requirement is in order, though, if "exceptional circumstances" exist, as defined by Wis. Admin. Code DWD 129.01(4). The relevant exceptional circumstance in this case is (a): "An error relating to the claimant's 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." At the very least, it was reasonable for the claimant to believe he would not have to call in his week 32 claim, based upon information given to him by the department representative with whom he spoke. He specifically asked the department representative if he would have to call the following week (week 33) to indicate that he was closing his claim (1). The department representative said that the claimant would not have to do so. This answer by the department representative was incomplete, however; it is true that the claimant would not have to contact the department in order to indicate he had returned to work. The claimant would have to contact the department in week 33, however, to file his week 32 claim. The claimant's misunderstanding of his requirement to call in his week 32 claim in week 33, at this point, is reasonable. The commission therefore finds that, for week 32 of 1998, the claimant failed to give due notice of unemployment to the department, within the meaning of Wis. Stat. 108.08(1) and Chapter DWD 129 of the Wisconsin Administrative Code, but that the reason for the failure constitutes an exceptional circumstance permitting waiver of the due notice requirement, within the meaning of the above- mentioned provisions.

DECISION

The appeal tribunal decision is reversed. Accordingly, the claimant is eligible for unemployment insurance in week 32 of 1998, if he is otherwise qualified.

Dated and mailed: January 13, 1999
schesja.urr : 105 : 1 CP 360

/s/ David B. Falstad, Chairman

/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. The commission does not disagree with the factual findings of the administrative law judge, but rather with the legal principle the administrative law judge used in his reasoning, that ignorance of the law is no excuse. That may be, but the facts of the case more properly fit under the "reasonable misunderstanding" provision of the administrative code.

 

PAMELA I. ANDERSON, COMMISSIONER (dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. The employe did not ask the department representative if he needed to file a claim for week 32, he only asked if he needed to do anything in week 33 when he returned to work. The department representative did nothing to mislead him. The employe was given an informational pamphlet by the department which would have informed him that he needed to file a claim for each week of benefits in a timely fashion. If the employe did not read the pamphlet, that is due to his fault and not an exceptional circumstance. I agree with the administrative law judge and thus I would affirm the appeal tribunal decision.

Pamela I. Anderson, Commissioner


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Footnotes:

(1)( Back ) The dissent misstates the record, when it asserts that the employe only asked if he needed to do anything in week 33 when he returned to work. The record indicates specifically that the employe asked if he would have to call in week 33 to indicate that he was closing his claim. This was a specific question, and not the general one the dissent makes up. The dissent then asserts that the department representative did nothing to mislead the employe. This assertion misstates the standard governing failures to give timely notice of unemployment. It is not whether a department representative mislead a claimant; it is whether a claimant's misunderstanding was reasonable, based upon information given to the claimant by the department. The dissent suggests, finally, that if the employe did not read the information sent him, his failure would not be due to an exceptional circumstance. This is speculation, however; there is no evidence in the record to suggest that the employe did not read the informational pamphlet claimants receive. Indeed, the record suggests exactly the opposite: the employe's testimony makes it clear that he did read the pamphlet.