Wis.LIRC UC Decision: Fox - January 30, 2002 - PC 711 Hearing, late request for hearing - reason beyond control - statement in Initial Determination to the effect that "benefits are allowed" with no qualification to that allowance, supercedes a prior determination indicating that benefits are denied, and is a reason beyond control for a failure to have timely appealed such prior, adverse determination

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

ROBERT J FOX, Employee

CABLE CORNER BAR, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01201708EC

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

The employee worked for about three months as a bartender for the employer. His last day of work was August 19, 2001 (week 34). He filed a claim for unemployment benefits on the following day. The initial determination was issued on September 22, 2001. It was final unless an appeal was filed or postmarked by October 9, 2001. The employee's letter of appeal was postmarked on November 3, 2001. The issue to be decided is whether the employee failed to file a timely request for a hearing and, if so, whether such failure was for a reason beyond his control. The commission concludes that the employee's late request for hearing was so for a reason beyond his control, and so reverses the appeal tribunal decision.

While working for the employer, the employee also worked for a resort. On September 29, 2001, the Department of Workforce Development issued an initial determination that held the employee had been discharged by the resort, not for misconduct. The determination stated expressly that benefits were allowed, and contained no qualification to that allowance. At least since 1988, the commission has held in this kind of case that the subsequent statement from the department to the effect that benefits are allowed outright, supercedes a prior document indicating that benefits are denied, and is a reason beyond control for a failure to have timely appealed the prior, adverse document. See Hunter v. Fleet Mortgage Corp., UI Dec. Hearing No. 88-605520 MW (LIRC December 9, 1988); Zyla v. Stock Lumber, Inc., UI Dec. Hearing No. 96601492MW (LIRC May 23, 1996); Andrews v. Flex-Staff Temp. Serv., UI Dec. Hearing No. 97400372AP (LIRC July 30, 1997); and Erspamer v. ADECCO Employment Services, Inc., UI Dec. Hearing No. 99400574GB (LIRC July 7, 1999).

The commission therefore finds that the employee's failure to file a timely request for hearing on the adverse September 22, 2001 initial determination was for a reason beyond his control, within the meaning of Wis. Stat. § 108.09(4).

DECISION

The appeal tribunal decision is reversed. Accordingly, this matter is remanded to the Department of Workforce Development for hearing and decision on the merits the employee's separation from the employer.

Dated and mailed January 30, 2002
foxrobe . urr : 105 : 1 PC 711

/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 matter. The commission's reversal is not based upon a differing credibility assessment from that made by the administrative law judge. Rather, as a matter of law, the undisputed facts in this case fall squarely under the legal principles enunciated above.

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uploaded 2002/02/04