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

RYAN C SORENSON, Employee

VEIT ENVIRONMENTAL INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02007239MD


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, except that it makes the following modifications:

The fourth sentence of the second paragraph on page 3 of the appeal tribunal decision is modified to read as follows:

The "LETTER OF DIRECTION" found that there was no intentional concealment and that there would be no sanctions imposed as a result.

DECISION

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

Dated and mailed April 11, 2003
sorenry . umd : 115 : 9   PC 711  PC 711.1

/s/ David B. Falstad, Chairman

James A. Rutkowski, Commissioner

/s/ James T. Flynn, Commissioner


MEMORANDUM OPINION

The employee contends that his appeal was filed late because he understood that, when the determination told him that he qualified for benefits as of July 28, 2002, "this is all taken care of, and I don't owe them." He further contends that he understood that the letter of direction he got on September 6 "cancelled out the one that said I was overpaid."

The standard for excusing a failure to timely appeal a LID is "reason beyond control." This is a very rigorous standard, and only extraordinary reasons have been found by the commission to satisfy it. See, Jerome Kosmoski, UI Hearing No. S9900245MW (LIRC March 22, 2000).

The commission does not find the employee's first argument persuasive. The LID, after stating that the employee was not eligible for benefits from 07/15/01 through 07/27/02, and was eligible for benefits beginning 7/28/02 and thereafter, then states that "this determination results in an overpayment of $6072.00 which the claimant must repay." It should have been obvious to a reasonable person, given the language of the LID and the sequence in which the language was presented, that the determination that the employee was now eligible for benefits did not "take care of" the overpayment.

The employee's second argument, although more persuasive than the first, still does not satisfy the "reason beyond control" standard. The letter of direction does state that incorrect answers on claims for unemployment insurance benefits often indicate willful concealment to obtain benefits not due, that failure to complete the claim correctly can result in overpayments which must be repaid, and that the investigation of the employee did not establish intentional concealment. It's possible to see how the mention of overpayment in the LID and in the letter of direction may have seemed contradictory to the employee as he has claimed here. However, it was clearly not beyond the control of the employee to attempt to resolve this seeming contradiction by contacting the department for clarification, or to file a timely appeal until this clarification was forthcoming. The employee did not act reasonably or responsibly when, acknowledging that he was confused by the seemingly contradictory language of the two September 6 communications from the department, he simply assumed that everything had been resolved in his favor.

This case does not present the same fact situation as those in which the commission has held that employees who receive a subseqent LID allowing benefits, during the appeal period for an earlier LID denying benefits, had a reason beyond their control for failing to file a timely appeal of the earlier LID. Zyla v. Stock Lumber Inc., UI Hearing No. 96601492MW (LIRC May 23, 1996); Erspamer v. Adecco Employment Services Inc., UI Hearing No. 99400574GB (LIRC June 7, 1999); Wiles v. US Paper Converters Inc., UI Hearing No. 02401090AP (LIRC April 23, 2002)  (1)  Not only were the two decisions here issued and presumably received the same day, not on subsequent days, but one did not deny benefits while the other allowed them.

It should also be noted that the LID here was careful to point out to the employee that the concealment issue was a separate one and would be dealt with in a separate decision.

The commission concludes that the employee did not show that his failure to file a timely request for hearing was for a reason beyond his control.

 


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Footnotes:

(1)( Back ) It should be noted that certain of these decisions did present a fact situation where two LIDs, at least one of which denied benefits, were issued on the same day. However, this was not the basis for the commission's conclusion that the employee had shown a reason beyond control for failing to file a timely appeal of one of these LIDs. Instead, the fact situation also included a LID issued after the date of these two LIDs which allowed benefits and it was this fact upon which the commission relied in finding reason beyond control.

 


uploaded 2003/04/25