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

CINDY  M  OONK, Employee

LA MACCHIA ENTERPRISES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04601033MW


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 employee was the subject of an adverse initial determination issued on December 27, 2003. The last day for a timely request for hearing was January 12, 2004; the employee filed her request for hearing only on January 22, and the issue is whether her request for hearing was late for a reason beyond her control within the meaning of Wis. Stat. § 108.09(4). The commission concludes that it was, and so reverses the appeal tribunal decision.

The initial determination held that the employee quit her employment, but not for a reason allowing for immediate eligibility for unemployment insurance. The substantive issue in the determination was the employee's depression and resulting inability to work. The determination stated the usual disqualification, the passing of four weeks and the requirement that the employee earn wages after the week of quit equaling four times her weekly benefit rate.

Three days later, the department issued a second determination, regarding the employee's ability to work. It held that she was ineligible for benefits because she was unable to work while undergoing outpatient medical treatment. The disqualification in this case was only that benefits were denied until she was able to work and available for work.

The employee believed that the second determination superseded the first, and that she would be eligible for benefits as soon as she was finished with her outpatient treatment and thus available for work. The employee subsequently discovered that her reasoning was erroneous, at which point she appealed the adverse December 27, 2003 determination.

By operation of Wis. Stat. § 108.09(4), a late request for hearing must be dismissed unless it was late for a reason beyond the appellant's control. In a line of cases with fact situations analogous to that present here, the commission has held that the late appeal of the first determination was so for a reason beyond the appellant's control.

In those cases, a first determination denied benefits for whatever reason, and a simultaneous or subsequent determination stated that benefits were allowed. The commission has regularly held, in those cases, that the subsequent receipt of information indicating that benefits were allowed without qualification, superseded previous information stating that benefits were denied (for whatever reason was at issue in the denial). See, e.g., Braun v. Stansfield Vending, Inc. UI Dec. Hearing No. 03001842MD (LIRC September 17, 2003) and Mathe v. Madison Window Cleaning Co., Inc., UI Dec. Hearing No. 02007776MD (LIRC April 11, 2003).

Analytically, the present case is no different. Essentially, the previous cases stand for the proposition that the most recent ruling from the department is controlling, and that a party reasonably may rely upon that ruling unless the department indicates that that ruling is specific to the issue resolved in the determination or otherwise not controlling with regard to the employee's overall unemployment insurance claim. In the present case, the most recent information the employee received was that she was ineligible for unemployment insurance only while she was unavailable for work while undergoing outpatient medical treatment. The employee reasonably interpreted this disqualification to mean that, once she was finished with her outpatient medical treatment and again ready to work, she would be eligible for unemployment insurance.

The commission therefore finds that the employee failed to file a timely hearing request but that the reason for that failure was beyond her control, within the meaning of Wis. Stat. § 108.09(4) 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 April 13, 2004
oonkci . urr : 105 : 9  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 case. The administrative law judge issued his decision based upon written submissions by the employee; obviously, hearing demeanor was not an issue in this case.


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uploaded 2004/04/14