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

MATTHIAS P MATHE, Employee

MADISON WINDOW CLEANING CO INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02007776MD


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 Department of Workforce Development issued an initial determination in this matter on October 16, 2002. The last date for a timely request for hearing was October 30; the employee filed his request for hearing on November 7, and the issue is whether his appeal was late for a reason beyond his control. The commission concludes that it was, and so reverses the appeal tribunal decision.

The initial determination the employee was late appealing, concerned a quit of employment from Madison Window Cleaning Company, Inc. The week of issue was week 34 of 2002, and the basis for the decision was the employee's failure to have responded to department inquiry regarding the issue. The determination stated that no benefits would be payable from August 18 through September 21, 2002 and until the employee had earned wages equaling at least $636.00 in covered employment.

Also on October 16, 2002, the department issued another initial determination in the employee's case. This determination held that the employee had enrolled in approved training pursuant to Wis. Stat. § 108.16(a). The determination noted that, while he was enrolled in the approved training, he would not be required to meet the "able to work" and "available for work" requirements of Wis. Stat. § 108.04(2)(a). The determination stated, finally: "BENEFITS ARE ALLOWED WHILE THE CLAIMANT REMAINS ENROLLED IN A COURSE OF APPROVED TRAINING THAT MEETS THE REQUIREMENTS OF SECTION 108.04(16)(A)." Thus, the employee received two determinations issued on the same day, one which stated that he was ineligible for benefits from August 18 through September 21, 2002, the other that benefits were allowed.

The employee has established a reason beyond control for the late appeal, based upon commission precedent. See, Walters v. Lisa's Flower & Gift Shop, Inc., UI Dec. Hearing No. 99602949MW (LIRC August 26, 1999). The employee in that case was the subject of an adverse initial determination issued on December 30, 1998. The determination stated that the employee had quit but not for a reason allowing the payment of benefits, and the determination also stated the requalification requirements. On the same date, the department issued another initial determination to the employee, involving a different employer, which stated: "REQUALIFYING REQUIREMENTS HAVE BEEN SATISFIED AND BENEFITS ARE PAYABLE." The case now before the commission is similar. The employee received an adverse initial determination which stated that he was ineligible for benefits for a certain period of time; he received another determination on the same day which stated without qualification that benefits were allowed. The employee reasoned that the determination allowing benefits superceded the adverse determination, in part because he did not even file his claim for benefits until week 39 of 2002, the week beginning September 22. He thus would have had no reason to challenge a determination which penalized him by disallowing benefits through September 21.

The commission therefore finds that the employee's late request for hearing was so for a reason beyond his control, within the meaning of Wis. Stat. § 108.09(4) and Wis. Admin. Code ch. DWD 140.

DECISION

The appeal tribunal decision is reversed. Accordingly, this matter is remanded to the Department of Workforce Development for hearing and decision on the merits.

Dated and mailed April 11, 2003
mathema . urr : 105 : 8  PC 711

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ James T. Flynn, Commissioner

NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision in this case. The commission's reversal is not based upon a differing credibility assessment from that made by the administrative law judge; rather, as a matter of law the undisputed factual circumstances constitute a reason beyond control for the late appeal.


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uploaded 2003/04/25