BEFORE THE
STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION


In the matter of the unemployment benefit claim of

JAMES J BLOCHOWIAK, Employee

Involving the account of

CAAP INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 91609706MW


The employer has filed a petition for review by the Commission of an Appeal Tribunal Decision in this matter. Section 108.09 (6)(a) of the Statutes provides:

"The department or any party may petition the commission for 'review of an appeal tribunal decision, pursuant to commission rules, if such petition is received by-the department or commission or postmarked within 21 days after the appeal tribunal decision was mailed to the party's last-known address. The commission shall dismiss any petition if not timely filed unless the petitioner shows probable good cause that the reason for having failed to file the petition timely was beyond the control of the petitioner. . ."

The Appeal Tribunal Decision having been dated and mailed on February 20, 1992, the last day on which a timely petition for review could have been filed was March 12, 1992. The employer's petition for Commission review of the Appeal Tribunal's Decision was received on March 16, 1992. It was postmarked on March 13, 1992.

In its reasons for late petition form, the employer's president states that the employer's appeal was delivered to the Menomonee Falls Post Office on March 12, 1992, prior to the last pickup of the day. The record discloses that the petition was not postmarked in Menomonee Falls but was apparently sent to the Milwaukee Post Office where it was postmarked on the following day. The Commission believes that the post office's decision to postmark mail at a different location is not a procedure a reasonable person would believe would occur when mail is deposited in a specific post office.

The Commission therefore finds that the employer has established that its failure to file a timely petition was for a reason beyond its control, within the meaning of section 108.09 (6)(a) of the Statutes. The employer's petition for Commission review is accepted.

Pursuant to the timely petition for review filed in the above-captioned matter, the Commission has considered the petition and all relief requested. The Commission has reviewed the applicable records and evidence and finds that the Appeal Tribunal's findings of fact and conclusions of law are supported thereby. The Commission therefore adopts the findings and conclusions of the Appeal Tribunal as its own.

DECISION

Accordingly, the employer's petition for review is accepted. The decision of the Appeal Tribunal is affirmed. Accordingly, the employe is eligible for benefits beginning in week 50 of 1991, if he is otherwise qualified.

Dated and mailed December 4, 1992
178 - CD8273  PC 731

Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R Meier, Commissioner


MEMORANDUM OPINION

In its petition for Commission review, the employer argues that if it failed to offer the employe work within his restrictions as the Appeal Tribunal Decision stated, it was because of a confusion over what his limitations were. The employer's president testified at length about her reservations concerning the employe's restrictions when he approached her to begin work again. However, it is undisputed that when the employe completed his last day of work in April, no further work was offered him. At that point, for unemployment compensation purposes, the employment relationship ended. Given the dispute over what the employe was able to do, no further work was ever offered to him in November or December. The Commission must agree with the Appeal Tribunal that since no offer of work was made in November the employment relationship was never resumed. It is not true that the employe quit his job at that time because an employe cannot quit a job which has already been terminated by the employer. His termination was the layoff in April.

The employer further argues that the employe was not able and available for at least 15 percent of the suitable work in his labor market. However, the employer offered no evidence to support this contention. The labor market analyst, the Department's expert on labor market conditions and availability issues, testified that the employe was available for in excess of 15 percent of the suitable work. In addition, the employe was working full time in a clerical position. These facts taken together provide ample support for the Appeal Tribunal's findings that the employe is able and available for 15 percent of the work as of November, 1991. Therefore, the Commission must affirm the Appeal Tribunal Decision.

cc:
Attorney Leonard Zubrensky
Zubrensky Padden Maloney & Katzman


[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]