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

REX A. DIETERLE, Employee

ADVANCED SEPARATION & PROCESS SYSTEMS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02008014MD

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. The initial determination shall remain in effect.

Dated and mailed August 15, 2003
dietere . usd : 164 : 1  PC 711

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

In the petition for commission review the employee's attorney argues that, during his telephone interview on October 30, 2002, the employee was told the adjudicator would "spend some time" making the decision. The employee's attorney argues that the employee was therefore led to believe his return in two weeks would allow sufficient time to respond to an adverse decision. This argument fails. At the hearing the employee testified that he thought it would probably be a wek or so at least before a decision was made and was surprised to find that a decision was made just a day or so after the interview. However, the adjudicator's purported statement that he would "spend some time" making the decision was ambiguous, and the employee was not justified in assuming that no decision would be issued for at least a week. The employee has not alleged that he told the adjudicator he intended to leave town, and there is no reason to believe that he was misled by the adjudicator.

In the petition the employee's attorney also argues that the employee was not aware the commission had a policy that he must monitor his mail if he is absent from home during the pendency of a UI claim, and that his actions were reasonable given the information he had available. However, the requirement that a claimant monitor his mail during the pendency of a UI claim is not a commission policy, nor is it a standard to which parties cannot be held unless specifically made aware. By statute a late appeal cannot be accepted unless it was late for a reason beyond the party's control. The commission has consistently held that aUI claimant has an obligation to monitor his mail while absent for an extended period of time while his claim is pending because to do so is both reasonable and within the claimant's control. Under all the circumstances, the commission agrees with the appeal tribunal that the employee's hearing request was not late due to any reason beyond his control. The dismissal of the hearing request is, accordingly, affirmed.

cc: Attorney Teresa K. Kobelt

Appealed to Circuit Court.  Affirmed February 23, 2004.  Circuit Court decision summary.

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uploaded 2004/03/08