DONALD D MC VICAR II, Employee

ACCELERATED BROADBAND INC, Employer

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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

The decision of the administrative law judge is affirmed. Accordingly, the employer's request for hearing on the merits is dismissed. The initial determination shall remain in effect.

Dated and mailed January 29, 2003
mcvicdo . usd : 132 : 1  PC 711

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

The employer has petitioned for commission review of the adverse appeal tribunal decision that dismissed its request for hearing as being late and not for a reason beyond its control. The employer maintains in its petition that it believed that the April 4, 2002, determination meant that the weekending March 23, 2002, would be the last date the employee would be allowed to collect benefits due to prior correspondence sent in by the employer. However, the basic problem with the employer's position is that it is impossible to appeal a determination before the determination is issued. In this case, the determination at issue was mailed on April 4, 2002. Nothing submitted by the employer prior to April 4, 2002, can be considered an appeal to that determination. Indeed, the determination was the result of the employer's contention that it offered the employee work. The department's adjudicator ruled against the employer. The initial determination contained instructions on how to file an appeal if the employer disagreed with the determination. Thus, if the employer disagreed with the finding that the employee did not receive a bona fide offer of work based on the fact that the work was located out-of-state, the employer should have filed an appeal to that determination. Nothing in the employer's testimony or in the documentation submitted by the employer indicates that the employer was unable to follow the instructions contained on the initial determination and file an appeal within the 14-period allowed by law. For these reasons, the commission affirms the appeal tribunal decision.

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uploaded 2003/02/10