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

JOSEPH M HOMSTAD, Employee

RADISSON LA CROSSE HOTEL, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03001910MD


An administrative law judge 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 administrative law judge, as well as that adduced at the December 2, 2003 remand hearing in the case. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee in this case was the subject of an adverse initial determination issued on January 9, 2003. The last date for a timely request for hearing was January 23; the employee only filed his appeal on February 28, 2003 (by facsimile transmission), and the issue is whether his appeal was late for a reason beyond his control. The commission concludes that it was, and so reverses the appeal tribunal decision.

The employee was on vacation during the department's investigation of his claim, and so missed his scheduled January 6 interview with the adjudicator. She issued a decision on January 9; also on that date, the employee returned from vacation and found a message from her on his answering machine. The employee's telephone records indicate that he tried to call her three times late that afternoon, but was unable to reach her. The employee did speak with the adjudicator the morning of January 10, for approximately half an hour.

In that conversation, the employee told the adjudicator "his side of the story," following which the adjudicator told the employee that the department would make a decision and that the employee would hear from the department in the next seven to ten days. Later on the 10th, the employee received the adverse initial determination, which had been issued the previous day. The employee did not timely appeal that decision because, based upon the adjudicator's statements, he believed the department would be reissuing the decision, taking into account the employee's claims regarding the separation.

By operation of Wis. Stat. § 108.09(2r) and (4)(c), a late request for hearing must be dismissed unless it was late for a reason beyond the party's control. The employee has established that his request for hearing was late for a reason beyond his control: the adjudicator's statement, the day after the department issued the adverse initial determination, to the effect that the department would be making a decision and that the employee would be hearing from the department in the next seven to ten days. This statement by the department adjudicator postdated the adverse determination by a day, and so constituted the most recent information to the employee from the department regarding his claim. The only reasonable inference to be drawn is that which the employee in fact drew, that the department would be redetermining his claim based upon the information he provided in the January 10 conversation with the adjudicator.

The commission therefore finds that the employee's request for hearing was late for a reason beyond his control, within the meaning of Wis. Stat. § 108.09(4)(c) and Wis. Admin. Code ch. DWD 140.

DECISION

The appeal tribunal decision is reversed. Accordingly, this matter is remanded to the Department of Workforce Development for hearing and decision on the merits.

Dated and mailed February 10, 2004
homstjo . urr : 105 : 1  PC 711

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision in this matter. The commission's reversal is not based upon a differing credibility assessment from that made by the administrative law judge; rather, it is due to evidence adduced at the remand hearing, evidence obviously not before the administrative law judge when he issued his decision.


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uploaded 2004/02/16