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

ROBERT J GRAY, Employee

TARGET STORES DIVISION, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04401518AP


On September 4, 2003, the department issued an initial determination that found that the employee was discharged for misconduct connected with his work. The last day to file a timely request for hearing was September 18, 2003. The employee filed a request for hearing dated December 26, 2003, postmarked December 27, 2003, and received on December 29, 2003. An appeal tribunal decision was issued on January 8, 2004, denying the employee's request for hearing as untimely and dismissing his appeal of the determination without conducting an evidentiary hearing as to the circumstances of the employee's untimely appeal. The employee petitioned the labor and industry review commission for review of that appeal tribunal decision. On February 18, 2004, the commission set aside the January 8 appeal tribunal decision and remanded the matter to the department "for hearing and decision on the issue of the timeliness of the employee's request for hearing," allowing the employee the opportunity to present evidence to support his position that his disabilities affected his ability to file a timely appeal. The department held a hearing on that issue on August 18, 2004. The ALJ contacted the employer's representative at 8:00 a.m. on the day of the hearing. The employer's representative eventually informed the ALJ that the employer did not intend to participate in the hearing.

Based on the applicable records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW


The employee, through his attorney, filed a request for hearing on December 27, 2003. The issue is whether or not the employee established that the failure to file a timely request for hearing was for a reason beyond his control.

The employee suffers from mental impairments that substantially limit his ability to comprehend the meaning of written words and documents. He has since childhood and as of the date of the hearing, received Social Security Disability Insurance benefits based on his status as a disabled person. As a disabled individual, he also received supportive services through the Door County Department of Community Development, including an individual caseworker at that department who, among other things, would read and explain to the employee any correspondence or notices that he received in his mail, provided the employee brought such documents to her for explanation and requested her to do so. The employee's caseworker had in the past specifically instructed the employee to bring her any documents he did not fully understand and he had often done so.

The initial determination in this case was mailed by the department on September 4, 2004, to the employee's correct address of record. The employee received the initial determination shortly after it was mailed. While he was able to read the words contained in the determination, the employee immediately realized that he did not fully understand what the word "appeal" meant, and he did not understand the explanation of his appeal rights that was set forth on the reverse side of that determination. Upon receiving the initial determination the employee called the unemployment office and was instructed to keep calling in his weekly claims. He was not given any further information with respect to appealing his initial determination or informed that he had a deadline for appealing. Sometime after receiving the initial determination the employee advised his caseworker that "he thought he got turned down for Unemployment." The employee did not advise her that he had received a written determination specifying any time-sensitive dates. He did not provide a copy of the determination he had received to his caseworker for her to review; he did not otherwise ask the caseworker to explain to him those portions of the documents that he did not understand. The caseworker was given no information by the employee to indicate he had received a written eligibility determination that might require an appeal or that specified an appeal time deadline for him to request a hearing and preserve his potential benefit eligibility. Based on the limited information given to her by the employee, the caseworker advised the employee to contact a local legal aid organization for assistance with his problem.

The employee contacted the local legal aid society in his area for assistance but was unable to secure an attorney through that organization. In mid-December of 2003, the employee contacted a private attorney for assistance with pursuing his claim for unemployment benefits. Upon investigation into the reason for the denial of benefits to the employee, the employee's attorney discovered that the employee had been denied benefits based on the determination issued by the department on September 4, 2003. Promptly upon learning of that determination, on December 27, 2003, the attorney then filed a request for hearing on the employee's behalf.

Wis. Stat. § 108.09(2r) provides:

"Any party to a determination may request a hearing as to any matter in that determination if such request is made in accordance with procedure prescribed by the department and is received by the department or postmarked within 14 days after a copy of the determination was mailed . . . ."

Wis. Stat. § 108.09 (4)(c) of the statutes provides, in relevant part, as follows:

"If a party files an appeal which is not timely, the department may schedule a hearing concerning the issue of whether the party's failure to timely file the appeal was for a reason beyond the party's control. . . . If, after hearing testimony, the appeal tribunal finds that the party's failure to timely file an appeal was not for a reason beyond the party's control, the appeal tribunal shall issue a decision containing this finding and dismissing the appeal. If, after hearing testimony, the appeal tribunal finds that the party's failure to timely file the appeal was for a reason beyond the party's control, the appeal tribunal shall issue a decision containing this finding. The same or another appeal tribunal established by the department for this purpose shall then issue a decision under sub. (3)(b) after conducting a hearing concerning any matter in the determination."

The issue to be decided is whether the employee's failure to file a timely request for hearing was for a reason beyond his control.

The employee in this case suffers from serious mental impairment. His condition is so serious that he has been receiving disability insurance since childhood and has qualified for the services of a caseworker. In order to qualify for the services of his caseworker the employee needed to have certain fairly significant cognitive impairment conditions. The employee received the initial determination but did not understand it. He testified he did not understand what it meant to appeal. The employee contacted the department but was only instructed to keep filing for benefits. The employee was not told, or if he was told did not understand, that he had been denied benefits because the initial determination found his discharge for misconduct and that he needed to appeal by September 18, 2003, in order to preserve his appeal rights.

The employee continued to file his claims and contacted his caseworker who advised him to contact his local legal aid society. The employee did so but was informed that he would not be able to receive the assistance of an attorney for some time. The employee then contacted an attorney on his own. The attorney filed an appeal on his behalf.

The undisputed evidence in the record is that the employee received an initial determination he did not understand. He contacted the department but the department worker did not explain the significance of the initial determination to him or explain that he needed to file a timely appeal. The employee then took steps on his own to seek clarification and assistance. While the employee did not explain the situation to his caseworker the employee did not understand the situation so the commission concludes his failure to explain the timeliness aspect of his initial determination was because he lacked the ability to do so. The employee did ultimately find an attorney who explained the effect of the initial determination on his claim and filed an appeal on his behalf. Generally a worker who cannot read, or who cannot read English is expected to find someone who can explain the initial determination and its effect to the worker. In most cases those workers are aware that department correspondence is important to their claim and must be addressed in a timely manner. However, in this case the commission is satisfied that the employee's disability prevented him from understanding either the initial determination or the fact that he could file an appeal.

The commission therefore finds that the employee's failure to file a timely request for hearing was for a reason beyond his control, within the meaning of Wis. Stat. § 108.09(4).

WHETHER THE EMPLOYEE'S DISCHARGE WAS FOR MISCONDUCT

The employee worked for the employer, a retail store, as a shopping cart attendant, for about two months. His last day of work was August 15, 2003 (week 33) when he was discharged by the employer.

The employer discharged the employee without explanation but invited him to return as a customer. The employee performed his job to the best of his ability.

The issue that must be decided is whether the employee was discharged for misconduct connected with his work.

In Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249, 296 N.W. 636 (1941), the leading case with respect to the meaning of the term "misconduct" as applied to unemployment compensation in the United States, the court said, in part, as follows:

" . . . the intended meaning of the term 'misconduct' . . . is limited to conduct evincing such wilful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good-faith errors in judgment or discretion are not to be deemed 'misconduct' with in the meaning of the statute."

The employer failed to appear at the hearing and the only evidence presented at the hearing was presented by the employee. There is no evidence in the record to support a conclusion that the employee's discharge was for misconduct connected with his work.

The commission therefore finds that in week 33 of 2003, the employee was discharged by the employer but that his discharge was not for misconduct connected with his work, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 33 of 2003, if otherwise qualified.

Dated and mailed November 12, 2004
grayro . urr : 145 : 8  PC 711

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

The commission did not discuss witness credibility and demeanor with the ALJ prior to reversing his decision. The commission did not reverse the ALJ's decision based on a different assessment of the employee's credibility but rather because it reached a different legal conclusion when it applied the law to the facts found by the ALJ.

cc: Attorney James O. Ebbeson


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