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

ALAN R DODDS, Employee

KOHLER COMPANY, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02400347AP


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 in this case was the subject of an adverse initial determination issued on January 10, 2002. The last date for a timely request for hearing was January 24; the employee's request for hearing was postmarked January 25. The commission concludes that the employee's request for hearing nonetheless was timely, and so reverses the appeal tribunal decision.

The employee wrote his request for hearing on or about January 23, 2002, and mailed it from a Sheboygan post office on January 24, 2002, shortly before 5:00 p.m. The last pick up from the mail box in which the employee deposited his appeal, is 5:30 p.m. As indicated above, the employee's request for hearing was postmarked only on January 25, in Milwaukee, Wisconsin.

The commission has consistently held, since 1993, that where an appeal is postmarked in a separate town from the town in which it was mailed, and the postmark is one day late, the appeal is deemed timely. In re Talamantez, UI Dec. Hearing No. 92002327FL (LIRC March 30, 1993); Buckmaster v. Olan Mills Studio, UI Dec. Hearing No. 94004102MD (LIRC November 23, 1994); and Rader v. Gary Bula Farms, Inc., UI Dec. Hearing No. 96005164BO (LIRC March 5, 1997). So it is here. The employee mailed his request for hearing in Sheboygan, Wisconsin on the appeal deadline, January 24, and it was postmarked in Milwaukee the next day.

The commission therefore finds that the employee's request for hearing was timely. The employee therefore is entitled to hearing and decision on the merits of his unemployment insurance claim.

DECISION

The decision of the administrative law judge is reversed. Accordingly, this matter is remanded to the Department of Workforce Development for hearing and decision on the January 10, 2002 initial determination.

Dated and mailed June 5, 2002
doddsal . urr : 105 : 2  PC 711

/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. The administrative law judge was not convinced of the accuracy of the employee's evidence regarding the timing of his appeal, since the appeal was postmarked the following day. The administrative law judge did not consider where the appeal was postmarked, however, or as a result the commission precedent on that issue.


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uploaded 2002/06/07