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

PAUL J WILCOTT, Employee

THOMAS ELECTRIC SERVICE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05001530MD


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 initial determination in this matter was dated and mailed by the department on March 4, 2005. The last day for postmarking and/or filing a timely appeal was March 18, 2005. The appeal and request for hearing was received by the hearing office on March 28, 2005.

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.

Wis. Stat. § 108.09(2r) and (4)(c) provide, in part, as follows:

(2r) HEARING REQUEST. 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 or given to such party, whichever first occurs.

(4) Appeals. (c) 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. . .

The employee explained that he had been laid off and expected to return to work on March 21, 2005. When he did not, he immediately mailed his appeal letter to the department. However, the employee was not working and was aware that the appeal period was coming to an end. This is not something that is beyond the employee's control. Rather, it was a calculation on his part. He decided that, because he expected to be working, it was not worth his time to file an appeal. Further, it is foreseeable that something might come up that would push back the starting date of his new employment. In fact, it is foreseeable that the new job might fall through altogether. The employee's hope for reemployment may have seemed reason able at the time the initial determination was issued and may have led him to conclude that it would not be worthwhile to request a hearing. Nevertheless, the fact remains that the employee consciously chose not to file a request for hearing, and that choice was with in the employee's control.

The commission therefore finds that the employee has not established that the failure to file a timely request for hearing was for a reason beyond his control, within the meaning of Wis. Stat. § 108.09(4)(c) and Wis. Admin. Code ch. DWD 140.

The commission further finds that the employee was paid benefits in the amount of $329 per week for each of weeks 12 and 13 of 2005, amounting to a total of $658; for which he was not eligible and to which he was not entitled, with in the meaning of Wis. Stat. § 108.03(1).

The commission further finds that waiver of benefit recovery is required under Wis. Stat. § 108.22(8)(c), be cause the over payment was the result of a departmental error, and the overpayment did not result from the fault of the employee as provided in Wis. Stat. § 108.04(13)(f).

DECISION

The decision of the administrative law judge is reversed. The initial determination dated March 4, 2005, remains in effect. Accordingly, the employee is eligible for benefits from February 20, 2005 until March 12, 2005, if the employee is otherwise eligible. The employee is ineligible for benefits from March 13, 2005 through April 16, 2005, and until the employee earns wages in covered employment after March 19, 2005, equaling at least $1,316. The employee's overpayment, in the amount of $658 is waived. The employee is not required to repay the sum of $658 to the Unemployment Reserve Fund.

Dated and mailed August 3, 2005
wilcopa . urr : 145 : 4  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 who held the hearing, but reverses his decision as a matter of law.

 


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