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

KAREN E MAGEROWSKI, Employee

COMFORT SUITES, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03606761MD


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 issued an initial determination on July 8, 2003, finding that the employee was discharged for misconduct connected with her employment. The last day to file a timely appeal was July 22, 2003. The employee faxed her appeal on July 28, 2003.

The issue to be decided is whether the employee's failure to file a timely appeal was for a reason or reasons beyond her control. If the appeal was late and the lateness was not due to a reason beyond the employee's control, the appeal must be dismissed as untimely. See, Wis. Stat. § 108.09(4)(c).

The employee received the department's determination shortly after it was mailed. She contacted the department's adjudicator because she did not understand why benefits were being denied. The adjudicator told her she had to file an appeal and explained why the employee was being denied.

After this conversation, she received a letter from her former employer stating it was not contesting her unemployment. She was also told that one of the employer's workers had a conversation with the unemployment office and told the office to go ahead and pay her unemployment.

Based on that letter, she was not certain whether she needed to appeal the department's determination. On July 14, 21, and 28, she left messages for the department's adjudicator to call her. The adjudicator did not respond to those messages. She subsequently contacted a departmental supervisor, who suggested that she file a late appeal, which she did on July 28.

Because the employee's appeal was not filed by the appeal deadline, the determination is final unless she establishes that her appeal was late due to reasons beyond her control. The commission concludes that she has met this standard. She was under the impression that she was being denied because the former employer was denying her. The employee was under this impression because when she asked for an explanation of the initial determination she was told that the employer told the adjudicator things that were negative about the employee.

The employee did not simply file an appeal because two days later she got a letter from the employer saying they were not denying her unemployment.

The initial determination specifically informs parties, if they have questions about the determination, to contact a claims specialist. In this case, the employee was uncertain, given the information she received from the employer, whether to file an appeal. The employee then contacted the adjudicator and left messages on three occasions. Two of those messages were left prior to the expiration of the appeal deadline. The adjudicator did not return those messages. Because she was confused by the employer's instructions, the employee attempted to determine whether to appeal the initial determination. Because the department did not respond to her questions in a timely manner the employee was not aware that she needed to file an appeal.

The commission therefore finds that the employee's failure to file a timely request for hearing was for a reason beyond her control within the meaning of Wis. Stat. § 108.09(4)(c) and ch. DWD 140.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee's request for hearing on the merits is granted. This matter is remanded to the hearing office for a hearing and decision on the merits of the case.

Dated and mailed January 21, 2004
magerka . urr : 145 : 2   PC 711

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

The commission did not consult with the ALJ regarding witness credibility and demeanor. The ALJ noted the employee's explanation for the late appeal but did not consider that the same established that the employee's appeal was late for a reason beyond her control. The commission disagrees with such conclusion.

cc: Jean Winkler, Director of Operations, Fond du Lac WI 54937


[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]


uploaded 2004/01/26