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

KAREN E SORTEBERG, Appellant

KOHNEN UNDERGROUND UTILITIES INC, Respondent

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02202644MD


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's initial determination adverse to the claimant was issued September 28, 2002, and contained an appeal deadline of October 15, 2002. The determination found that the claimant was not able to work and available for work. The claimant filed an appeal of that adverse determination on December 3, 2002.

The issue to be decided is whether the claimant's appeal was late for a reason beyond her control.

The claimant spoke with a department adjudicator on September 25, at which time she was informed that her benefits were being held up because she had to provide medical documentation. The claimant received the department's medical form (UCB-474) on September 27. On September 30, she had a doctor's appointment. On October 1, she faxed the completed UCB-474 to the adjudicator. On that same date, she received the adverse initial determination and another determination that found she failed, without good cause, to accept an offer of suitable work.

The claimant did not appeal the initial determination because she believed that it was issued in error because the adjudicator did not have the opportunity to review the medical form she sent in. The initial determination stated, "she has an injured arm. She failed to provide any requested medical documentation. If such documentation is provided in the future this decision may be redetermined, if applicable." This led the claimant to believe that once the adjudicator received the medical form the adjudicator would reconsider the initial determination.

The commission finds that the combination of the adjudicator's statements and the written information contained on the initial determinations led the claimant to conclude that the initial determination would be redetermined once the adjudicator reviewed the medical information provided.

The commission therefore finds that the claimant'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)(c) and ch. DWD 140.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the claimant's request for hearing on the merits is granted. This matter is remanded to the hearing office for a hearing and decision on the merits of the case.

Dated and mailed June 5, 2003
sorteka . urr : 132 : 1  PC 711

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

The commission did not consult with the ALJ regarding witness credibility and demeanor. The ALJ noted the claimant's explanation for the late appeal but did not consider that the same established that the claimant's appeal was late for a reason beyond her control. The commission disagrees with such conclusion.

 


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uploaded 2003/06/13