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

JOSEPH P PICCIURRO JR, Employee

PIEPER ELECTRIC INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05604260MW


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 May 14, 2005. The last date for a timely request for hearing was May 31; the employee filed his request for hearing on June 6, 2005, and the issue is whether it was late for a reason beyond his control. The commission concludes that it was, and so reverses the appeal tribunal dismissal decision.

By operation of Wis. Stat. § 108.09(4)(c), a late request for hearing must be dismissed unless it was late for a reason beyond the appellant's control. In the present case, the employee received two initial determinations issued on the same date. The determination in the instant case held that the employee quit his employment but not for a reason allowing for the payment of benefits. The determination stated that no benefits would be payable until the employee met the requalification requirements listed on the determination. The second determination stated that the employee was available for at least 50 percent of the suitable full-time jobs in his labor market. The determination also stated, without qualification, that benefits were allowed.

The commission has addressed this circumstance in cases going back to 1997, beginning with Andrews v. Flex-Staff Temp. Serv., UI Dec. Hearing No. 97400372AP (LIRC July 20, 1997). In that case, the employee received two initial determinations issued on the same date, one which denied benefits and the other which stated, without qualification, that benefits were allowed. The commission relied in major part upon this confluence to hold that the employee's late appeal was so for a reason beyond her control.

More recently, the commission has held that two contradictory decisions alone are sufficient to constitute a reason beyond control for the late appeal of the adverse one, in Mathe v. Madison Window Cleaning Co., Inc., UI Dec. Hearing No. 02007776MD (LIRC April 11, 2003). In that case, there were two determinations issued on the same date, one which denied benefits and the other which allowed benefits so long as the claimant remained enrolled in approved training (which he was enrolled in at the time). On the basis solely of those two determinations, the commission held that the employee's late appeal of the disqualifying determination was so for a reason beyond his control. The commission reasoned, as it regularly has in this circumstance, that the receipt on the same day of a decision which states without qualification that benefits are allowed, is sufficient justification for failure to timely appeal a disqualifying decision issued on the same date.

The circumstances in the present case are on point with those discussed above. The commission therefore finds that the employee's request for hearing was late for a reason beyond his control, within the meaning of Wis. Stat. § 108.09(4)(c).

DECISION

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

Dated and mailed August 5, 2005
piccijo . 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 case. The commission's reversal is not based upon a differing credibility assessment from that made by the administrative law judge. Rather, the commission concludes as a matter of law that the undisputed factual circumstances constitute a reason beyond control for the employee's late appeal.

 


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uploaded 2005/08/08