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

JACQUEY A DAVIS, Employee

US CELLULAR, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03602023MD


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 department's determination was dated and mailed on February 5, 2003, and indicated on its face that an appeal must be postmarked or received by February 19, 2003.

The employer had directed that any communications from the department be sent to its agent and had provided the address of its agent as its mailing address. Despite these instructions, the department sent the determination at issue here to one of the employer's local offices and did not send a copy to the employer's agent. The agent did not become aware of the determination until some time on February 19 when the employer brought it to the agent's attention. The agent requested and waited for appeal instructions from the employer, and then FAX'd a request for hearing to the department on February 20.

The commission does not agree with the administrative law judge that the employer had a duty to promptly forward a copy of the determination to its agent. The situation here is akin to those in which there is an attorney of record, and the commission has held that it was reasonable for the client to assume, even when they received a copy of a communication from the department, that their attorney received a copy as well and was handling it on their behalf. See, e.g., Leach v. A1 Heating & Air Conditioning Inc., UI Hearing No. 03401652AP (LIRC July 17, 2003); Prince Cable, Inc., UI Hearing No. S9900227MW (LIRC Feb. 23, 2001). Here, the employer properly notified the department that communications should be directed to its agent. It was reasonable for the employer to assume, when it received a copy of the determination, that the department had sent one to the employer's agent as well, and that the agent was handling the matter on the employer's behalf.

The remaining question, then, is whether the employer's agent failed to file the request for hearing on February 19 for a reason beyond its control. The law necessarily contemplates, by providing a 14-day span between the issuance of the determination and the deadline for appealing it, that a party have some reasonable period of time to review a determination, to decide whether it merits an appeal, and to prepare and send an appeal. Due to an error by the department and through no fault of the employer, the employer's agent received the determination on the same day that an appeal would be due, and was, as a result, deprived of a reasonable opportunity for this review, decision, and preparation. The commission concludes, based on the narrow facts of this case, that this provided a reason beyond control for the employer's failure to file its request for hearing by the February 19 deadline.

DECISION

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

Dated and mailed August 19, 2003
davisja . urr : 115 : 1   PC 711 

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner


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uploaded 2003/08/25