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

DAVID E SIMS, Employee

RAYOVAC OF MADISON CORP OFFICE, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03001749MD


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 shall remain in effect.

Dated and mailed August 19, 2003
simsdav . usd : 115 : 1    PC 711

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION


The employee failed to file a timely appeal of a department determination denying benefits because he had quit with no qualifying exception. The employee received this determination at or around the same time he received a medical questionnaire from the department. The employee assumed, after being told by a department representative that he needed to have his physician complete the questionnaire before his case could proceed, that he couldn't appeal the determination until this questionnaire was completed.

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).

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 medical questionnaire upon which the employee relies 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; and those in Windau v. Manpower Temporary Services, UI Hearing No. 02008043WK (LIRC July 25, 2003), 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 benefit computation form received on the same day. The commission agrees with the administrative law judge that the employee could have, but failed to, ask the department whether he was required to wait until the medical questionnaire form was completed before appealing the determination, and his assumption, based on the general information he requested and received from the department, that he was so required, was not reasonably justified and did not provide a reason beyond his control for failing to timely appeal the determination.

The employee also argues in his petition that he could not file his appeal until he received certain documents he had requested from the employer relating to his separation. However, although the employee may have found it useful to have these documents in order to present his case at hearing, he had all the information he needed to craft and to file his appeal prior to the appeal deadline. See, e.g., Trego v. Seagull Aviation Parts, Inc., UI Hearing No. 02403884AP (LIRC March 7, 2003) (the fact that the employee was waiting for certain documentation to support her claim of good cause for her quit does not constitute a reason beyond control for a late appeal).


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uploaded 2003/08/25