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

RICK W WILES, Employee

U S PAPER CONVERTERS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02401090AP


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 was the subject of an adverse initial determination issued on January 31, 2002. The last date for a timely request for hearing was February 14; the employee's appeal was postmarked only on March 9, and the issue is whether the employee's appeal was late for a reason beyond her control. Based upon commission precedent cited below the commission concludes that the employee's request for hearing was late for a reason beyond her control. The commission therefore reverses the appeal tribunal decision and remands the matter to the Department of Workforce Development for hearing and decision on the merits.

The employee originally indicated, in a written statement, that her appeal was late because the department had not informed her she was ineligible for benefits, in a clear and understandable manner. The employee stated that she was under the impression she would be getting a recalculation of her benefits and would be receiving a benefit check soon. The administrative law judge dismissed the employee's appeal, rejecting the employee's assertion that the department had not clearly provided the information regarding the employee's ineligibility for benefits. The administrative law judge's reasoning is correct, if one looks only at the January 31 initial determination. It becomes incorrect, however, once the initial determination issued six days later, on February 6, is considered. That determination concerned another employer, and stated both that the employee had not been discharged and that benefits were allowed. The employee took this determination to mean that she now was eligible for benefits, and so no longer had to file an appeal of the adverse January 31 determination.

At least since 1988, the commission has held in this circumstance that the subsequent receipt of a decision which states without qualification that benefits are allowed, is a reason beyond control for a failure to have timely appealed a prior decision which denied benefits. The 1988 case is Hunter v. Fleet Mortgage Corp., UI Dec. Hearing No. 88-605520 MW (LIRC December 9, 1988). The commission again so held in 1996 in Zyla v. Stock Lumber, Inc., UI Dec. Hearing No. 96601492 MW (LIRC May 23, 1996). In that case, the commission specifically found that the employee's failure to timely appeal the prior, adverse determination was the logical consequence of the determinations he received. The final determination stated without qualification that benefits were allowed. The commission again followed this practice in 1999 in Erspamer v. ADECCO Employment Services, Inc., UI Dec. Hearing No. 99400574 GB (LIRC June 7, 1999).

The commission therefore finds that the employee's late request for hearing on the adverse January 31, 2002 initial determination, was so for a reason beyond her control, within the meaning of Wis. Stat. § 108.09(4). The employee thus is entitled to hearing and decision on the merits.

DECISION

The appeal tribunal decision is reversed. This matter is remanded to the Department of Workforce Development for hearing and decision on the merits.

Dated and mailed April 23, 2002
wilesri . urr : 105 : 8  PC 711  PC 711.1

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

 

NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision in this case. Such conferral is required when the commission is considering reversal of a case and credibility was a factor in the administrative law judge's decision. When there has been no hearing, however, such credibility matters do not come into play. Rather, the commission's reversal is based upon the precedents cited in the decision and, as such, is as a matter of law.


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