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

JOANNE R HAEMMERLE, Employee

AMERICAN ROOFING INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04403132AP


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 July 22, 2004. The last date for a timely request for hearing was August 5; the employee mailed her request for hearing on August 17, it was received by the Department of Workforce Development August 18, and the issue is whether the appeal was late for a reason beyond the employee's control. The commission concludes that it was, so reverses the appeal tribunal decision.

The employee timely received the July 22, 2004 initial determination. That determination stated the general impact upon the claimant's eligibility of her status as a one-fourth (or more) owner of the corporation in question. The determination also instructed the employee to "refer to monetary computation issued as a result of this decision for specific information." The department did not issue that monetary computation, however, until August 3, 2004, which means that the employee only received it on or about August 5, the deadline for appealing the initial determination. The monetary computation instructed the employee to check the computation carefully and, if there were any employers left out or any other errors, to contact the department by August 17, 2004. The employee did so on August 17 and, following a conversation with a claims specialist, filed her request for hearing on the adverse July 22, 2004 initial 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. The employee's late request for hearing in this case meets this standard. The initial determination specifically referred to a document the employee did not receive until it was too late for her to file a timely request for hearing. In other words, the determination expressly incorporated by reference the monetary computation, along with its August 17 response deadline. The employee had no control, though, over the timing of her receipt of the monetary computation.

The commission therefore finds that the request for hearing was untimely, but that it was so for a reason beyond the employee's control, within the meaning of Wis. Stat. § 108.09(4).

DECISION

The appeal tribunal decision is reversed. Accordingly, this matter is remanded for hearing and decision on the merits.

Dated and mailed November 17, 2004
hwmmjo . urr : 105 : 1   PC 711

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, 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 matter. Both the appeal tribunal's and the commission's decisions were based upon the employee's written submissions and without hearing; for this reason, hearing demeanor obviously was not a factor in the commission's decision to reverse the appeal tribunal decision.

 


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uploaded 2004/11/22