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

CHARLOTTE A GROSS, Employee

FOOT LOCKER CORPORATE
SERVICES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05607425MW


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 November 4, 2005
grossch . usd : 115 : 4  PC 711

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION


A department determination denying benefits was dated and mailed on April 13, 2005, and stated on its face that it would become final unless a written appeal was postmarked or received by April 27, 2005. The employee's appeal was postmarked on October 4, 2005, and received by the department on October 6, 2005.

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 she received it and to note the appeal deadline. See, Thelen v. Toms Quality Millwork, Inc, UI Hearing No. 99003677MD (LIRC Dec. 22, 1999).

The employee explains that she made a conscious decision not to appeal the determination during the appeal period, and then changed her mind after the appeal deadline had expired when she learned that a former co-worker had been awarded benefits.

By definition, a conscious decision is within the individual's control. See, Huse v. Society Insurance, UI Hearing No. 04404352AP (LIRC Jan. 27, 2005). In addition, the failure of the employee to possess during the appeal period certain information relating to the successful claim of a former co-worker did not prevent the employee from crafting and filing an appeal, and this failure, as a result, does not provide a reason beyond control for her untimely appeal. See, Trego v. Seagull Aviation Parts, Inc., UI Hearing No. 02403884AP (LIRC March 7, 2003); Woods v. Kohl's Food Stores, Inc., UI Hearing No. 03603487MW (LIRC May 21, 2003); Dorfler v. Diane S. Diel, S.C., UI Hearing No. 05600660MW (LIRC March 4, 2005) (discovery of information after deadline which led employee to believe she had a meritorious claim not a reason beyond control for untimely appeal).

cc: Foot Locker (Milwaukee, Wisconsin)



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uploaded 2005/11/07