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

ADAM M LAWRENCE, Employee

PERSONNEL RESOURCES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04002257DV


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. The employer filed a petition for review. Based on a review of the record, including department records, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

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 . . ."

Wisconsin Admin. Code § LIRC 2.01 (1) provides, in relevant part, as follows:

"A petition for commission review of the findings or order of an appeal tribunal decision under s. 108.09 or 108.10, Stats., shall be postmarked or received within 21 days from the date of mailing of the decision to the parties."

Wisconsin Statutes § 108.09(2r) provides that a party may request a hearing as to any matter in an initial determination if such request is made in accordance with procedures prescribed by the department and is received by the department or postmarked within 14 days after a copy of the determination was mailed or given to the party, whichever occurs first. An untimely hearing request will be dismissed unless the party filing the request shows that the reason for having failed to file the request timely was beyond the party's control. Wis. Stat. § 108.09(4)(c).

The administrative law judge's decision having been dated and mailed on June 21, 2004, the last day on which a timely petition for review could have been filed was July 12, 2004. The petition for review was filed on July 15, 2004.

The issues to be decided in this case are whether the employer's petition for commission review was late for a reason beyond the employer's control, and whether the employer's failure to file a timely request for hearing was for a reason beyond the employer's control.

The initial determination in this case found that the employee quit his employment with the employer and not for a reason that would permit immediate benefit payment. The determination found the employee had been overpaid $1,160.00 in UI benefits that must be repaid. The determination further found that the benefits were erroneously paid because the employer failed to question eligibility on a required report, form UCB-16 and, as a result the employer's account would not be credited with the amount of overpaid benefits, even if repayment was received by the department.

The employee filed a timely request for hearing. The employer contacted the adjudicator who issued the initial determination about appealing the portion of the determination that found the employer's account would not be credited with the amount of overpaid benefits. The adjudicator advised the employer not to appeal, but to raise the issue with the ALJ at the hearing. The employer did raise the issue at the hearing. The ALJ indicated at the hearing and in her appeal tribunal decision that, because the employer failed to file a timely request for hearing, the issue would not be addressed. After receiving the appeal tribunal decision the employer again contacted the adjudicator about the matter. The adjudicator assured the employer that the adjudicator would get back to the employer about the matter. On July 15, 2004, three days after the petition deadline, the adjudicator advised the employer to petition for commission review.

The employer failed to timely appeal the adverse determination on the advice of the department. The employer filed a late petition because the adjudicator indicated she would get back to the employer on what the employer should do, but failed to do so within the petition deadline. The adjudicator's statements led the employer not to file a timely appeal and to delay in filing a petition. The employer cannot be faulted for relying on the advice of the department.

The commission therefore finds that the petition for commission review was not timely but that the employer has shown probable good cause that the reason for having failed to file the petition timely was beyond the employer's control, within the meaning of Wis. Stat. § 108.09 (6)(a).

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

DECISION

The petition for review is accepted. The portion of the appeal tribunal decision that found the employee quit his employment and not for any reason permitting benefit payment is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 9 of 2004, and until four weeks have elapsed since the end of the week of quitting and until he has earned wages in covered employment performed after the week of quitting equal to at least four times the weekly benefit rate which would have been paid had the quitting not occurred. The employee is required to repay the sum of $1,160.00 to the unemployment reserve fund. The portion of the appeal tribunal decision that found the employer's account would not be credited for erroneously paid benefits is set aside. This matter is remanded to the hearing office for a hearing and decision on the latter issue.

Dated and mailed August 20, 2004
lawread . upr : 132 : 1 :   PC 711  PC 731

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

cc:
Attorney Peter Lawrence
Personnel Resources, Inc. (Richland Center, Wisconsin)


 

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uploaded 2004/08/23