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

DAVID R UMHOEFER, Employee

CITY OF MEQUON, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No.  01605423MD


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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own, except that it makes the following modification:

In the third sentence of the appeal tribunal's FINDINGS OF FACT AND CONCLUSIONS OF LAW the term "notice of hearing" is deleted and the term "initial determination" is substituted therefor.

DECISION

The decision of the administrative law judge, as modified, is affirmed. Accordingly, a hearing to take testimony on the merits will be scheduled as soon as possible.

Dated and mailed October 26, 2001
umhoeda . umd : 164 : 1  PC 711

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

In the petition for commission review the employee argues that the employer is seeking to blame the United States Postal Service or the Department of Workforce Development for its failure to receive the mailing. The employee argues that the department used the correct mailing address and that the postal service has procedures to insure that all properly addressed mail is delivered. He contends that the determination was, in fact, delivered to the employer. The employee further asserts that to find for the employer without any supporting evidence creates a blanket excuse for all employers to ignore appeal deadlines. The employee's arguments fail. Neither the department nor the postal service is infallible, and although there is a presumption that mail which is properly addressed will be received by the addressee, there are instances when mail does not reach the intended recipient. Because a party will generally not have any direct evidence of non-receipt of mail, the decision-maker must rely upon the credibility of the testimony of the party asserting that the document was not received. Here, the employer's witness had firsthand knowledge of the employer's procedures for the receipt of its mail, and testified without rebuttal that the initial determination was not received. The appeal tribunal found this testimony to be credible, and the commission sees no compelling reason to believe otherwise. Under the circumstances, the commission agrees with the appeal tribunal that the employer's appeal was late for a reason beyond its control. Accordingly, the appeal tribunal decision is affirmed.

cc: Davis & Kuelthau S. C.


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uploaded 2001/10/29