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

LEROY J ALLEN JR, Employee

MILWAUKEE DUCTILE IRON INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02606699MD


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

The department's determination in this matter was dated and mailed by the department on July 9, 2002. The last day for postmarking and/or filing a timely appeal was July 23, 2002. The employee's appeal and request for hearing was received by the department on July 25, 2002.

Wis. Stat. § 108.09(2r) provides that a party may request a hearing as to any matter in an initial determination if such request is made in accordance with procedures prescribed by the department and is received by the department or postmarked within 14 days after a copy of the determination was mailed or given to the party, whichever occurs first. An untimely hearing request will be dismissed unless the party filing the request shows that the reason for having failed to file the request timely was beyond the party's control. Wis. Stat. § 108.09(4)(c).

The employee received the initial determination mailed on July 9, 2002, on July 11, 2002. He read the initial determination and put it aside in anticipation of filing an appeal at a later time. However, he misplaced the initial determination and could not remember the appeal instructions. When he later realized he had misplaced the initial determination, he attempted to contact personnel of the unemployment insurance division but was unable to obtain sufficient information from them in a timely fashion. Ultimately, he decided to proceed without the information and filed his appeal on July 25, 2002.

In this case there was some fault on the employee's part because he misplaced his initial determination. However, the employee thereafter acted in a reasonable manner. He had trouble getting through to the department because of heavy call volume but ultimately did contact the department. He was told he would be sent appeal instructions. The employee did not receive the appeal instructions prior to the expiration of the appeal deadline. The department worker did not tell him when his appeal deadline expired. The employee took reasonable steps to ensure that he filed his appeal in a timely manner. The inability of the department to give the employee information necessary to file his appeal in a timely manner was not within the employee's control.

The commission, therefore, finds that the employee failed to file a timely hearing request but that his failure to do so was for a reason beyond his control, within the meaning of Wis. Stat. § 108.09(4) and Wis. Admin. Code chapter DWD 140.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee's appeal is not dismissed. The commission remands this matter to the hearing office for a hearing and decision on the merits of the employee's appeal.

Dated and mailed January 15, 2003
allenle . usd : 145 : 1  PC 711 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The commission did not discuss witness credibility and demeanor with the ALJ who held the hearing. Rather, the commission reverses because it reached a different legal conclusion from the facts found by the ALJ. While it was difficult to determine exactly what steps the employee took to get appeal instructions, the commission accepts the ALJ's conclusion that the employee was unable to obtain sufficient information from the department in time to file his appeal.


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uploaded 2003/01/27