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

MARY C LARK, Employee

MARQUETTE UNIVERSITY, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03600525MD


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 employee was the subject of an adverse initial determination issued on November 15, 2002. The last date for a timely request for hearing was November 29. The employee filed her request for hearing by facsimile transmission on January 10, 2003, and the issue is whether her request for hearing was late for a reason beyond her control. The commission concludes that it was, and so reverses the appeal tribunal decision.

The employee testified credibly that she did not receive the determination. She became aware of its existence when she was not paid unemployment insurance benefits and had difficulty telephoning in weekly claims for benefits. She then obtained a duplicate determination and, within two or three days of receipt of the duplicate determination, sent by facsimile transmission a request for hearing to the Unemployment Insurance Division's Milwaukee Hearing Office.

The employee had two problems with delivery of her mail. One problem was the mail carrier's occasional delivery of all mail to the house either to her or to her upstairs neighbor. In this case, whoever received all of the mail would take the improperly delivered mail to her neighbor. The second problem was the existence of a 24th Place adjacent to the employee's address, 24th Street. The employee had significant difficulties with regard to misdelivered mail in this category during the time period in which the Department of Workforce Development sent out the initial determination.

The administrative law judge, in holding that the employee's request for hearing was not late for a reason beyond her control, reasoned in part that the employee's failure to have received the initial determination was due to her not having placed her name on her mailbox. The commission cannot conclude, however, that that failure caused the employee's non-receipt of the initial determination. The employee and her neighbor had an informal procedure in place for dealing with mail misdelivered to the building, so the employee's failure to have put her name on the mailbox should have had no effect upon mail delivery to the building. The employee's non-receipt of the initial determination thus must be held to have been due to the second category of misdelivered mail, that is, mail addressed to 24th Street but erroneously sent to 24th Place. With regard to this aspect of the case, the administrative law judge reasoned that the employee could have considered obtaining a post office box. The commission believes it goes too far, however, to require a party to obtain a post office box in order to correct mail delivery failures by the United States Postal Service. The most reasonable inference from the evidence is that the employee's non-receipt of the initial determination was due to Postal Service confusion between 24th Street and 24th Place; that is a matter entirely out of the employee's control, and that is also the end of the inquiry.

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

DECISION

The appeal tribunal decision is reversed. Accordingly, this matter is remanded to the department for hearing and decision on the merits.

Dated and mailed June 24, 2003
larkma . urr : 105 : 8     PC 711

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner



NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision in this matter. The commission's reversal was not based upon a differing credibility assessment from that found by the administrative law judge; rather, as a matter of law the commission concluded that, in the context of this case, the employee's non-receipt of the initial determination was due to a reason beyond her control.


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uploaded 2003/06/27