Wis.LIRC UC Decision: Helser - April 6, 2001 - PC 711 Hearing, late request for hearing - Where appeal was received within 2 business days of deadline, appellant testified it had been mailed, and department did not retain envelope so it could not be determined if it was timely postmarked, the appeal should be treated as timely pursuant to DWD 140.01(2)(c) 5, which governs mailed appeals where there is no postmark

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

CHRISTIAN J HELSER SR, Employee

ADECCO EMPLOYMENT SERVICES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01000246MD

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 ALJ. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

An initial determination adverse to the employer was issued December 22, 2000. The last day to appeal timely was January 5, 2001. The employer's appeal was stamped received at the Madison Benefit Center on January 8, 2001. It was stamped received at the Madison Hearing Office on January 9, 2001. No envelope is in the record to establish a postmark date. The employer's agent testified that she addressed the appeal to the Madison Hearing Office on Aberg Avenue and delivered the letter to the mailroom where it is picked up and deposited at the post office that same day.

The issue to be decided is whether the employer filed a timely request for hearing and, if not, whether its hearing request was late for a reason beyond its control.

The employer did mail the hearing request to an office designated to receive UI appeals. The appeal was received at that location on January 8, 2001. The department failed to retain the envelope or a facsimile of the envelope containing the appeal. Therefore, it is impossible to determine whether the appeal was actually postmarked timely. Under Wis. Admin. Code � DWD 140.01(2)(c) 5., an appeal containing no postmark is considered to have been mailed two-business days prior to receipt. Considering the January 8, 2001, receipt date the appeal is deemed to have been filed on Thursday, January 4, 2001. January 5, 2001 was the last date to file a timely appeal.

The commission therefore finds that the employer filed a timely request for hearing within the meaning of Wis. Stat. � 108.09(4)(c) and Wis. Admin. Code � DWD 140.01(2)(c) 5.

DECISION

The decision of the administrative law judge is reversed. Accordingly, this matter is remanded back to the hearing office for a hearing and decision on the merits of the case.

Dated and mailed April 6, 2001
helsech . urr : 132 : PC 711

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did discuss witness credibility and demeanor with the administrative law judge. The administrative law judge did not believe the employer's witness could actually remember filing this particular appeal. The administrative law judge did believe the appeal was filed by mail. This being the case, the appeal must be considered timely as the department was responsible for maintaining evidence of the postmark and did not, this was not within the employer's control and under the administrative code the appeal is deemed filed on January 4, 2001.

cc: Adecco Employment Services Inc.

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uploaded 2001/04/09