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

LEE FRY INC, Employer

UNEMPLOYMENT INSURANCE CONTRIBUTION LIABILITY DECISION
Account No. 801648, Hearing No. S0500179MD


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 employer's request for hearing on the merits is dismissed. The initial determination shall remain in effect.

Dated and mailed December 9, 2005
leefryi . ssd : 150 : 1 PC 711  PC 714.03

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The employer's representative petitioned for commission review of the appeal tribunal decision finding that the employer failed to file a timely request for hearing and failed to establish that the late request was for a reason beyond the party's control. The crux of the petition is that the owner of the business did not receive the initial determination in February or March, 2005 when it was mailed to the address of record, a post office box. However, the employer's representative was not the address of record at that time and the individual handling the mail at the post office box did not testify to non-receipt of the determination. Further, while the department does not send out determinations by certified mail, there is a rebuttable presumption that mail properly addressed is received. State Ex Rel. Flores, 183 Wis. 2d 587, 612 (1994). Proof of mailing need not be direct but may be shown by evidence of office custom and compliance therewith. Christnacht v. ILHR Department, 68 Wis. 2d 445 (1975). An initial determination in a hearing file with a date indicating that it was mailed and to the address of record establishes proof of such mailing. Cline v. Initial Security, UI Dec. Hearing No. 99400303GB (LIRC May 10, 1999). As such, while the commission concedes that the postal service may lose or misdirect documents on occasion, the law recognizes the above presumption and the burden shifted to the employer and its representative to establish that the mail was not received. The record in this matter simply failed to rebut this presumption and therefore, the commission adopts the appeal tribunal decision as its own.

cc: Christopher Sutton, CPA


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