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

RUDOLPH M GIZEWSKI, Employee

TECSTAR MFG CO, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05601413MW


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.

DECISION

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 May 5, 2005
gizewru . usd : 115 : 1   PC 711

/s/ James T. Flynn, Chairman

David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION


A department determination denying benefits was dated and mailed on November 19, 2004, and stated on its face that it would become final unless a written appeal was postmarked or received by December 3, 2004. The employee's appeal was postmarked on February 18, 2005, and received by the department on February 22, 2005.

In correspondence dated and mailed on February 25, 2005, the department gave the employee seven days within which to provide an explanation for his untimely appeal. The employee did not respond to this correspondence or otherwise provide such an explanation.

In his petition for commission review, the employee explains that he underwent rotator cuff surgery on November 10, 2004, and, from that date until the end of February of 2005, during his period of recuperation; he did not need unemployment benefits because he was collecting workers compensation benefits.

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). It was certainly within the employee's control to read the determination when he received it and to note the appeal deadline. See, Thelen v. Toms Quality Millwork, Inc, UI Hearing No. 99003677MD (LIRC Dec. 22, 1999).

If the employee is contending here that he did not file his appeal before the deadline because he was recovering from surgery, his medical condition during the appeal period would have had to have been actually incapacitating, and to have prevented him from filing a timely appeal, in order to satisfy the reason beyond control standard. See, McCloud v. Badger Meter, Inc., UI Hearing No. 99606530MW (LIRC May 10, 2000), McMurtry v. Refrigerant Recovery, Inc., UI Hearing No. 03601987MD (LIRC July 24, 2003). The employee has not claimed such an incapacity, and one may not reasonably be inferred from the information he has provided.

It appears that the employee's actual motivation for failing to file his appeal until he had healed from his rotator cuff surgery was the fact that he did not need to rely upon unemployment benefits until the healing process had ended and he was no longer eligible for workers compensation benefits. The necessary implication from this is that the employee made a conscious decision not to pursue his unemployment claim during the appeal period which, by definition, was not a matter beyond his control. See, Huse v. Society Insurance, UI Hearing No. 04404252AP (LIRC Jan. 27, 2005).



[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]


uploaded 2005/05/09