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

VERONICA MCMURTRY, Employee

REFRIGERANT RECOVERY INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03601987MD


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.

DECISION

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

Dated and mailed July 24, 2003
mcmurve . usd : 115 : 1    PC 711

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The employee contends that, due to a mental health condition from which she has suffered for at least six years and for which her physician has prescribed medication, she has difficulty focusing on details when there are stressors in her life; and that, during the appeal period at issue here, she was experiencing stress due to having many unpaid bills.

However, in order to satisfy the standard that there was a reason beyond her control for failing to file a timely appeal, the employee would have to show that her mental health condition was actually incapacitating, and prevented her from filing a timely appeal. See, McCloud v. Badger Meter, Inc., UI Hearing No. 99606530MW (LIRC May 10, 2000). The employee failed to demonstrate such incapacity at hearing.

In her petition, for the first time, the employee provides medical evidence as to her condition, consisting of psychiatric progress notes from 1997 signed by a consulting psychiatrist. These notes confirm that the employee suffers from anxiety and obsessive/compulsive disorder for which her physician has prescribed medication. However, even if the commission could consider such evidence, these progress notes indicate that, despite her mental health condition and while on medication, the employee continued "to function quite well despite some stressors," which would not support a conclusion that her mental health condition would have prevented her from filing a timely appeal. See, Heider v. Basic American Metal Products, UI Hearing No. 97005806MD (LIRC Dec. 29, 1998) (opinion of physician that employee, due to brain tumor, would not have been able to understand a legal decision and respond in timely manner, provided reason beyond control for untimely appeal); Knutson v. Scientific Molding Corporation LTD, UI Hearing No. 00200191EC (LIRC Aug. 4, 2000) (opinion of physician that medical condition significantly interfered with employee's ability to file a timely request for hearing due at least in part to difficulty during appeal period adjusting to new medication, provided reason beyond control for untimely appeal); McCloud, supra, (physician's testimony that employee had anxiety attack during appeal period which prevented him from leaving his house and which may have prevented him from filing on appeal on time provided reason beyond control for untimely appeal). Moreover, the employee has failed to explain why, given the continuing nature of her mental health condition, it would have prevented her from filing an appeal during the appeal period, but did not prevent her from filing an appeal six weeks later.

The commission concludes that the employee has failed to show a reason beyond her control for failing to file a timely appeal.

 


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uploaded 2003/07/28