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

EULONDA R HUSE, Employee

SOCIETY INSURANCE A MUTUAL CO, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04404252AP


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 January 27, 2005
huseeul . usd : 115 : 1  PC 711

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

A department determination relating to the impact of dismissal pay on the employee's claim, was dated and mailed on December 3, 2004, and stated on its face that it would become final unless a written appeal was postmarked or received by December 17, 2004. The employee's appeal was received on December 27, 2004.

The employee explains that, after receiving this determination, she contacted the adjudicator who explained that her conclusion was based on her understanding of the degree of specificity required by the department of an employer in such cases. Based on this conversation, the employee decided not to appeal. The employee further explains that, after the appeal deadline had expired, she learned of a contrary conclusion reached in regard to a claim of a former co-worker, and filed an untimely appeal as a result.

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, during the appeal period, made a conscious decision not to file an appeal. By definition, such a decision was within the employee's control. The employee argues that she reached this decision based on misinformation from the adjudicator. However, the adjudicator did not provide misinformation to the employee. In their conversation, the adjudicator explained the basis for the conclusion she had reached in the determination, which necessarily relied on her interpretation of the available facts and the relevant law. It is the purpose of an appeal to challenge such a conclusion, and to have a separate tribunal develop a factual record and interpret the relevant law to ascertain whether a different conclusion should be reached. The employee had an opportunity to prosecute such an appeal, but forfeited such opportunity when she failed to file a timely request for hearing.



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uploaded 2005/11/07