MARY L CAIN, Employee

CITY OF BELOIT, Employer

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:

The employee was discharged in week 43 of 2004 from the City of Beloit where she worked as a bus driver. On November 15, 2004 the employee enrolled in a heavy equipment training course located in Sun Prairie, Wisconsin. The employee temporarily moved to Sun Prairie during this three month course. On November 29, 2004 the employee initiated her claim for unemployment benefits involving her employment separation with the City of Beloit. At that time, the employee listed her Beloit mailing address even though she had moved temporarily to Sun Prairie to attend this training school.

During the initial claim investigation, adjudicator Alan Joranlien, telephoned the employee on December 8, 2004 for her initial claim statement. At that time, the employee informed the adjudicator to mail department correspondence to the training school located in Sun Prairie where she was temporarily living. On December 10, 2004, the initial determination was sent to the employee's address in Beloit, the address listed when she initiated her claim.

When the employee returned home from her three months training in Sun Prairie in February of 2005, the employee found and then read the unfavorable December 10, 2004 initial determination denying her claim for unemployment benefits. At that time, the employee made a conscious decision not to appeal the unfavorable initial determination. The employee testified that she "decided to drop the issue because she can't collect unemployment" and decided to learn a new trade and get a new job. Subsequently, on August 25, 2005 the employee filed a late appeal and hearing request as a result of an unemployment claim stemming from subsequent employment.

The issue for review is whether the employee's failure to file a timely appeal was for a reason beyond her control within the meaning of Wis. Stat. § 108.09(4)(c). The standard for excusing a failure to timely appeal a department determination is whether the party's explanation or reason for the failure was beyond the party's 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 commission recognizes the department's failure to send the initial determination to the employee's temporary address in Sun Prairie, Wisconsin. And had the employee filed a late appeal in February of 2005 when she first learned of the unfavorable initial determination, the commission may have reached a different legal conclusion. However, the employee made a conscious decision not to appeal the unfavorable initial determination and changed her decision after only becoming unemployed with subsequent employment.

While the employee's explanation is personally valid, it does not constitute an extraordinary reason necessary to meet the standard by establishing that it was beyond the employee's control to have timely appealed. The employee's decision to seek training and additional schooling as a result of her unemployment from the City of Beloit is commendable. The fact however remains that the employee consciously chose not to file a request for hearing in February of 2005 and that choice was within her control.

The commission therefore finds that the employee failed to establish that her failure to file a timely request for hearing was for a reason beyond her control within the meaning of Wis. Stat. § 108.09(4) and Wis. Admin. Code ch. DWD 140.

The appeal tribunal decision is reversed. Accordingly, the employee's request for a hearing on the merits is dismissed. The initial determination shall remain in effect.

Dated and mailed December 2, 2005
cainmar . urr : 135 : 1 PC 711

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

The commission did not consult with the ALJ before reversing as credibility was not an issue. The commission finds the employee's testimony that she informed the department's adjudicator in early December 2004 that any determination was to be sent to her temporary address credible. The commission however reached a different legal conclusion when applying the law to the facts found by the ALJ. The employee made a conscious decision not to appeal when she first learned of the unfavorable initial determination. The employee changed her decision six months later after only becoming unemployed with subsequent employment. Under these circumstances, the commission therefore cannot conclude that it was beyond the employee's control to have timely appealed.

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uploaded 2005/12/12