Wis.LIRC UC Decision: Windau, Warren - July 25, 2003 - PC 711 - Hearing, Late Request For Hearing - decision allowing benefits followed by one denying benefits - could not have led claimant to reasonably believe department's final decision allowed benefits - receipt of benefit computation form also not reasonably relied on by claimant as reason not to appeal

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

WARREN T WINDAU, Employee

MANPOWER TEMPORARY SERVICES, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02008043WK

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 hearing on the merits is dismissed, and the department's determination in this matter remains in effect.

Dated and mailed July 25, 2003
windawa . usd : 115 : 9 PC 711

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION
The department determination (LID) that the employee quit with no qualifying exception which would permit the payment of benefits was mailed to the employee on October 22, 2002, and indicated on its face that the deadline for filing a timely appeal was November 5, 2002. The employee filed his appeal on November 14, 2002. An earlier determination allowing benefits based on a period of employment with a different employer was issued on October 19, 2002, and received by the employee a few days before the subject determination.

The standard for excusing a failure to timely appeal a department determination (LID) is "reason beyond control." This is a very rigorous standard, and only extraordinary reasons have been found by the commission to satisfy it. See, Jerome Kosmoski, UI Hearing No. S9900245MW (LIRC March 22, 2000).

This case does not present the same fact situation as those in which the commission has held that employees who receive a subseqent LID allowing benefits, during the appeal period for an earlier LID denying benefits, had a reason beyond their control for failing to file a timely appeal of the earlier LID. Zyla v. Stock Lumber Inc., UI Hearing No. 96601492MW (LIRC May 23, 1996); Erspamer v. Adecco Employment Services Inc., UI Hearing No. 99400574GB (LIRC June 7, 1999); Wiles v. US Paper Converters Inc., UI Hearing No. 02401090AP (LIRC April 23, 2002) Here, the LID allowing benefits was received before the LID denying them, and could not, as a result, have led the employee to reasonably believe that the department's final decision allowed benefits.

The employee also argues that the fact that he received a benefit computation form on the same day that he received the second LID denying benefits led him to believe that benefits had been allowed.

The results the commission has reached in cases where an employee has received two pieces of correspondence from the department on the same day have relied primarily on the specific language of the documents at issue. See, Sorenson v. Veit Environmental, Inc., UI Hearing No. 02007239MD (LIRC April 11, 2003); Mathias Mathe v. Madison Window, UI Hearing No. 02007776MD (LIRC April 11, 2003); Walters v. Lisa's Flower & Gift Shop, Inc., UI Hearing No. 99602949MW (LIRC Aug. 26, 1999).

The benefit computation form (UCB-700) upon which the employee relies specifically cautions that "this computation does not mean that benefits are immediately payable to you," and that, "[I]f an eligibility issue is still pending, you will receive a separate written notice regarding that issue." Moreover, this document is not a department determination awarding or denying benefits. In Mathe and Walters, the commission did not conclude that the employee reasonably relied upon one of two seemingly contradictory documents, but instead that the employee reasonably relied upon a determination which apparently resolved an issue presented by the other (Walters), or upon the fact that one determination ostensibly related to a different period of time than the other (Mathe). In the commission's opinion, the facts of this case are more closely comparable to those in Sorenson, where the commission concluded that it had not been beyond the control of the employee to attempt to resolve the seeming contradiction between a determination and a letter of direction issued and received on the same day. As the administrative law judge concluded here, since the last determination the employee received was clear on its face that benefits would not be payable beginning in week 32 of 2002, the receipt of other correspondence should have raised question in the employee's mind "about the interrelationship of various determinations and to ask specifically about this before the appeal deadline passed."

The commission therefore finds that the employee failed to file a timely request for hearing and that such failure was not for a reason beyond his control, within the meaning of Wis. Stat. § 108.09(4).

cc: Manpower Temporary Services - Milwaukee, WI

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uploaded 2003/07/28