SHANNON J LEACH, Employee

A 1 HEATING & AIR CONDITIONING INC, Employer

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:

An amended determination was issued by the department on April 2, 2003, establishing a deadline for appeal of April 16, 2003. Although a copy of this amended determination was mailed to the employee, it was not mailed to the employee's attorney of record, who had filed a notice of retainer with the department on or around January 30, 2003. The employee assumed that his attorney had received and appealed the amended determination. However, an appeal of the amended determination was not filed until April 24, 2003, after the employee first advised his attorney of the existence and content of the amended determination.

The administrative law judge decided that the employee had a duty to alert his attorney to the existence and content of the amended determination or to file an appeal of it himself since it was obvious from that document that a copy had not been sent to his attorney, and the employee's failure to do so prevented a finding that he had a reason beyond his control for failing to file a timely appeal.

However, the department has an affirmative duty to send a copy of a document to a party's attorney of record, and its failure to do so provides the appellant with a reason beyond his control for having failed to file a timely appeal. Prince Cable, Inc., UI Hearing No. S9900227MW (LIRC Feb. 23, 2001); Triplett v. Milwaukee Public Schools, UI Hearing No. 01600099MW (LIRC May 16, 2001).

The commission therefore finds that the request for hearing was not timely filed, within the meaning of Wis. Stat. § 108.09(2r) and Wis. Adm. Code § DWD 140.01, but that the employee has shown that the reason for having failed to file the request on a timely basis was beyond his control, within the meaning of Wis. Stat. § 108.09(4).

The decision of the administrative law judge is reversed. Accordingly, this matter is remanded to the department for hearing on the merits.

Dated and mailed July 17, 2003
leachsh . urr : 115 : 1   PC 711

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

NOTE: The commission did not conduct a credibility conference with the administrative law judge (ALJ) before reversing her decision because the ALJ's decision relied upon written correspondence from the parties, not upon hearing evidence and, as a result, not upon an assessment of the credibility of witnesses.

cc: Attorney David J. Winkel

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uploaded 2003/07/21