SUSAN K DORFLER, Employee

DIANE S DIEL SC, Employer

An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the AU. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

The decision of the administrative law judge is affirmed. Accordingly, the employee's request for hearing is dismissed, and the department determination remains in effect.

Dated and mailed March 4, 2005
dorflsu . usd : 115 : 1  PC 711

/s/ James T. Flynn, Chairperson

/s/ David B. Flastad, Commissioner

/s/ Robert Glaser, Commissioner

A department determination denying benefits was dated and mailed on December 4, 2004, and stated on its face that it would become final unless a written appeal was postmarked or received by December 20, 2004. The employee's appeal was postmarked on January 24, 2005, and received by the department on January 25, 2005.

The employee explains that her appeal was filed after the deadline because of the stress she experienced after losing her job of 12 years, and because she discovered information after the deadline which led her to believe that she had a meritorious claim for benefits.

The standard for excusing a failure to timely appeal a department determination is "reason beyond control." This is a very rigorous standard, and only extraordinary reasons have been found by the commission to satisfy it. See, Jerome Kosmoski, UI Hearing No. S9900245MW (LIRC March 22, 2000). It was certainly within the employee's control to read the determination when she received it and to note the appeal deadline. See, Thelen v. Toms Quality Millwork, Inc, UI Hearing No. 99003677MD (LIRC Dec. 22, 1999).

If the employee is contending that she failed to file a timely appeal due to a mental health condition, she would have to show that this condition was actually incapacitating, and prevented her from filing a timely appeal. See, McCloud v. Badger Meter, Inc., UI Hearing No. 99606530MW (LIRC May 10, 2000);  McMurtry v. Refrigerant Recovery, Inc., UI Hearing No. 03601987MD (LIRC July 24, 2003). The employee does not allege such an incapacity.

In addition, the failure of the employee to possess, during the appeal period, the additional information she references, did not prevent her from crafting and filing an appeal, and this failure does not, as a result, provide a reason beyond control for her untimely appeal. See, Trego v. Seagull Aviation Parts, Inc., UI Hearing No. 02403884AP (LIRC March 7, 2003); Woods v. Kohl's Food Stores, Inc., UI Hearing No. 03603487MW (LIRC May 21, 2003).

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