BEFORE THE

STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

MONICA M. HUNTER, Employee

FLEET MORTGAGE CORPORATION, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 88-605520 MW


The issue in this matter is the employe's failure to timely request a hearing on a misconduct determination by the Department. The Department issued two Initial Determinations to the employe on July 29, 1988. The first held she was ineligible for benefits because an uncontrollable restriction limited her availability to less than 15 percent of suitable work in her labor market area. The second held she was discharged for misconduct connected with her employment. The employe obtained a statement from her physician that lessened physical restrictions upon her ability to work, and submitted it to the Department in early August. This submission resulted eventually in a September 29 Department determination that the employe was then available for work.

The Department issued another Initial Determination to the employe on August 6, 1988. This determination reversed the effect of a July 21 determination which had denied the employe benefits because of her failure to register for work with her local employment office. The August 6 determination stated its effect to be: "BENEFITS ARE ALLOWED."

The employe requested a hearing on the July 29 misconduct determination on September 27, 1988, well past the two-week appeal period prescribed in section 108.09(2r) of the Statutes. On October 11, 1988, an Appeal Tribunal issued a Decision Dismissing Late Appeal, on the ground that the employe failed to show that her failure to timely request a hearing was for a reason beyond her control. The employe timely petitioned the Commission for review of the October 11 Decision Dismissing Late Appeal.

Section 108.09(2r) of the Statutes requires dismissal of a party's late request for hearing, if the party cannot show probable good cause that the request was late for a reason beyond the party's control. The Commission believes the August 6 determination makes the employe's request for hearing on the misconduct determination untimely for a reason beyond her control. The August 6 determination stated unconditionally that the employe then was eligible for benefits. While one might be sufficiently familiar with the workings of the Department to know the determination did not affect other issues pending with the Department, yet it was reasonable for the employe to assume, as she did, that this determination superseded the preceding misconduct determination. Ordinarily, when an employe is the subject of more than one determination, a determination to the effect that an employe has met a specific requirement for benefit eligibility will state that benefits are allowed if the employe is otherwise eligible. Such a statement puts an employe on notice that the determination does not necessarily supersede other matters the employe has pending with the Department. The statement on the August 6 determination, however, was unconditional and the determination provided no hint that it did not mean what it stated. The Commission therefore finds that the employe's request for hearing on the July 29, 1988 misconduct determination was untimely, and that it was so for a reason beyond the employe's control, within the meaning of section 108.09(2r) of the Statutes.

DECISION

The October 11, 1988 Decision Dismissing Late Appeal is reversed. This matter is remanded to the Department for hearing and decision on the misconduct charge which formed the basis for the July 29 determination.

Dated and mailed December 9, 1988
105 : CD0413  PC 711

/s/ Hugh C. Henderson, Chairman

/s/ Carl W. Thompson, Commissioner

/s/ Pamela I. Anderson, Commissioner


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