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

PATRICIA A MORAN, Claimant

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02605398RC


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

On February 5, 2002, the department issued an initial determination that found that the claimant could set aside her benefit year. The result of the set aside was that the claimant has an overpayment. On the last day of her appeal period, February 19, 2002, the department issued another initial determination that found that the claimant was not able to work and available for work. The claimant would not have even received that initial determination until her appeal period on the set aside issue had expired. Because the claimant was not eligible for benefits because she was not able to work and available for work, she would have to repay the overpayment resulting from the new initial determination, and would not be able to receive further benefit payments.

The issue to be decided is whether the claimant's failure to file a timely request for hearing was for a reason beyond her control.

The claimant asserts she was told by the department that she was able to work and available for work, specifically she was initially told she able to perform 15.26 of the suitable work in her labor market. It was only when she received the second initial determination, after the appeal period for the set aside determination had expired, that she learned it had been determined that she was not able to work and available for work. Thus, the claimant asserts that she relied upon the department, to her detriment, in making her decision about appealing the present initial determination. Given the timing of the issuance of the initial determinations in this case, it was beyond her control to file a timely appeal.

Therefore the commission concludes that the claimant's failure to file a timely request for hearing was for a reason beyond her control, within the meaning of Wis. Stat. § 108.09(4).

DECISION

The decision of the administrative law judge is reversed. Accordingly, this matter is remanded for a hearing on the merits of the case.

Dated and mailed November 25, 2002
moranpa . urr : 145 : 1  PC 711

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner



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uploaded 2002/12/09