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

LASHAUNDA T TAYLOR, Employee

ADECCO NORTH AMERICA LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02607966MD


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 mailed the employee an initial determination on July 17, 2002. The last day to file a timely appeal was July 31, 2002. The appeal and request for hearing was postmarked on September 3, 2002.

Wis. Stat. § 108.09(2r) provides:

"Any party to a determination may request a hearing as to any matter in that determination if such request is made in accordance with procedure prescribed by the department and is received by the department or postmarked within 14 days after a copy of the determination was mailed . . . ."

Wis. Stat. § 108.09 (4)(c) of the statutes provides, in relevant part, as follows:

"If a party files an appeal which is not timely, the department may schedule a hearing concerning the issue of whether the party's failure to timely file the appeal was for a reason beyond the party's control. . . . If, after hearing testimony, the appeal tribunal finds that the party's failure to timely file an appeal was not for a reason beyond the party's control, the appeal tribunal shall issue a decision containing this finding and dismissing the appeal. If, after hearing testimony, the appeal tribunal finds that the party's failure to timely file the appeal was for a reason beyond the party's control, the appeal tribunal shall issue a decision containing this finding. The same or another appeal tribunal established by the department for this purpose shall then issue a decision under sub. (3)(b) after conducting a hearing concerning any matter in the determination."

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

On July 11, 2002, the department mailed an initial determination that found that the employee concealed a material fact (her quit from a temporary help agency) and would forfeit $284 that became payable by July 5, 2008. That determination had an appeal deadline of July 25, 2002. On July 15, the employee appealed, misinterpreting the July 25, 2002, determination as a decision on her entire eligibility and not just the concealment issue. The department issued two other determinations unrelated to this initial determination, one finding that she did not quit a job with a different employer and one finding no concealment as a result of her separation from that employment. Those initial determinations had appeal deadlines of July 29.

On July 17, 2002, the department issued the initial determination at issue in this case. That determination found that the employee quit her job but not for a reason that would have allowed immediate benefit payments. The initial determination indicates that it does not dispose of the concealment issue. The initial determination further states that resolution of the concealment issue will be set forth in another decision issued on the same date or in a later decision. The concealment initial determination was, in fact, issued on July 11, not at a later date or on the same date.

The employee called the department and was told by the department representative that if she appealed the July 11, 2002, initial determination, and won the appeal, everything would be overturned. The employee's testimony in this regard was undisputed.

The forfeiture determination that she received also bears some relation to the underlying issue in this case because the employee was found to have concealed the quit that is at issue in this case. The employee was given information by the department that may have been correct at the time, assuming that the employee requested this information prior to the issuance of the quit initial determination. However, given the connection between the employee's cases, and the fact that the employee had received a number of initial determinations, the employee reasonably believed the comments of the department representative applied to this case as well as the concealment case.

The commission therefore finds that the employee'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 to the Department of Workforce Development for hearing and decision on the merits of the employee's separation from the employer.

Dated and mailed April 17, 2003
taylola . urr : 145 : 1   PC 711

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ James T. Flynn, Commissioner


MEMORANDUM OPINION

The commission discussed witness credibility and demeanor with the ALJ who held the hearing. He found the employee's testimony that she was confused to be credible. Further he thought that she did believe that she was appealing both initial determinations. The ALJ doubted though, whether the department representative told the employee that if she appealed the fraud initial determination, and it was resolved in her favor, everything would be taken care of. He did not think the employee was being untruthful about what she was told by the department representative, but thought she may not have remembered it accurately. The commission accepts the employee's testimony with regard to what she was told because it was undisputed. Further, depending upon when the statement was made, it may have been an accurate statement of the situation. Given all the circumstances in this case, the commission concludes that the employee's failure to file a timely request for hearing was for a reason beyond her control.

cc: Attorney Colleen A. Foley


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