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

JILL M KNUTSON, Employee

CHETS PLUMBING & HEATING INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03001651MD


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A petition for review was filed by the employer.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The administrative law judge's decision having been dated and mailed on April 7, 2003, the last day on which a timely petition for review could have been filed was April 28, 2003. The petition for review was filed on January 20, 2004.

Wisconsin Stat. § 108.09 (6)(a) provides, in relevant part, as follows:

"The department or any party may petition the commission for review of an appeal tribunal decision, pursuant to commission rules, if such petition is received by the department or commission or postmarked within 21 days after the appeal tribunal decision was mailed to the party's last-known address. The commission shall dismiss any petition if not timely filed unless the petitioner shows probable good cause that the reason for having failed to file the petition timely was beyond the control of the petitioner . . ."

Wisconsin Admin. Code § LIRC 1.02 provides, in relevant part, as follows:

"All petitions for commission review shall be received, or, in unemployment compensation, received or postmarked, within 21 days from the date of mailing of the administrative law judge's findings and decision or order, except as provided under this section. `Received' means physical receipt. A mailed petition postmarked on or prior to the last day of an appeal period, but received on a subsequent day is not a timely appeal, except in unemployment compensation. All petitions shall be in writing. . ."

The employer did not appear at the hearing in this matter nor did it petition the appeal tribunal decision within the appeal deadline. The reason for failing to appear and failing to timely petition were the same. The employer had contacted the department prior to the scheduled hearing date to determine its potential liability. The employer was told that the only liability it would ever face would be $500.00. This was not correct, as the employer became liable for additional charges when the employee began a new benefit year and wages from the employer were included in that benefit year. The commission finds that the employer reasonably relied on information from the department that led it to fail to attend the hearing and fail to file a timely petition.

The commission therefore finds that the employer's petition for commission review was late for a reason that was beyond the employer's control within the meaning of Wis. Stat. § 108.09(6).

The commission further finds that the employer had good cause for failing to attend the schedule hearing within the meaning of Wis. Stat. § 108.09(4).

DECISION

The petition for commission review is accepted. The appeal tribunal decision issued on April 7, 2003, is set aside. This matter is remanded to the hearing office for a new hearing before and decision by an administrative law judge.

Dated and mailed May 4, 2004
knutsji . upr : 132 : 1  PC 712.6  PC 731

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

NOTE: If the ALJ's decision denies benefits and assesses an overpayment, the ALJ should specifically consider whether the information the employer was given, which led to its failure to appear, constituted departmental error.


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uploaded 2004/05/10