ROY R FRANK, Employee

FRANK BROTHERS INC, Employer

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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

The decision of the administrative law judge is affirmed. Accordingly, the employee's request for hearing is dismissed, and the department determination remains in effect.

Dated and mailed January 13, 2005
frankro . usd : 115 : 1   PC 711

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

A department determination (ID# 040604542, Hearing No. 04006052MD) finding a concealment and imposing a forfeiture was also dated and mailed on October 16, 2004, and stated on its face that it would become final unless a written appeal was received or postmarked by November 1, 2004.

The employee's appeal of these determinations was postmarked November 24, 2004, and received by the department on November 29, 2004.

The standard for excusing a failure to timely appeal a department determination is "reason beyond control." This is a very rigorous standard, and only extraordinary reasons have been found by the commission to satisfy it. See, Jerome Kosmoski, UI Hearing No. S9900245MW (LIRC March 22, 2000).

The employee explained to the department and to the commission that his appeal of these determinations was filed after the deadline because he was working long hours, was studying to fulfill certain career goals, and was caring for his daughter. However, although the demands of one's personal or work life may make attending to one's other responsibilities more challenging, they do not actually act to prevent one from attending to these other responsibilities and do not, as a result, provide a reason beyond control for filing an untimely appeal. In re: Smith, UI Hearing No. 04601400MW (LIRC March 16, 2004); Mason v. Grandma's House, UI Hearing No. 04601760MW (LIRC April 6, 2004).

The employee also explains that he did not understand the legal implications of the determinations. The commission has consistently held, however, that it is within a party's control, prior to the appeal deadline, to find someone, either a department claims specialist, an attorney, or some other resource in the community, to explain a department determination to them. See, e.g., Thelen v. Toms Quality Millwork, Inc., UI Hearing No. 99003677MD (LIRC Dec. 22, 1999).

The employee also explains that he contacted the department investigator to explain his disagreement with certain factual allegations and, when he subsequently received the determinations, which accepted the challenged version of these facts, he assumed that these determinations had been issued before his conversation with the investigator and other corrected determinations would be forthcoming. However, there is nothing in the subject determinations which could reasonably be interpreted as connoting that something other than a final decision had been made by the department. In fact, on their reverse side, these determinations state that, "[t]his determination resolves an unemployment eligibility issue;" and, in bold capital letters, that, "if you disagree with this determination, you have the right to file an appeal." These determinations also state that any questions should be directed to a claims specialist. It was certainly within the employee's control, if he questioned the finality of the determinations, to contact a claims specialist prior to the appeal deadline in order to make this inquiry.

This is not akin to those situations in which a party receives two determinations and has reason to conclude that an unfavorable decision is preempted by a concurrent or subsequent favorable one. See, Mathe v. Madison Window Cleaning Co., Inc., UI Hearing No. 02007776MD (LIRC April 11, 2003); Zyla v. Stock Lumber, Inc., UI Hearing No. 96601492MW (LIRC May 23, 1996). Here, both determinations were unfavorable to the employee's interests.

The commission agrees with the administrative law judge that the employee has failed to offer a reason beyond his control for his untimely appeals.

cc: Attorney Beth Eyster Shore

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uploaded 2005/01/18