DONALD M SCHUNKE, Claimant

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.

The decision of the administrative law judge is affirmed. Accordingly, the claimant's request for hearing is dismissed, and the department determination remains in effect.

Dated and mailed January 27, 2006
schundo . usd : 115 : 1  PC 711

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

The claimant's appeal of both determinations was sent and received through facsimile transmission. The only date generated by the facsimile transmission process which appears on the appeal documents is August 5, 2005. The department received the claimant's appeal on August 5, 2005.

Wisconsin Administrative Code § DWD 140.01(2)(c)7. states as follows:

(c) An appeal shall be considered filed on the earliest of the following dates:...

7. If the appeal was faxed, the date of transmission recorded on the faxed appeal. If the fax is received without a date of transmission recording, the date actually received by the department is presumed to be the date of transmission.

The claimant failed to prove at hearing that any date other than August 5, 2005, should govern here. As the administrative law judge stated in his decision, the August 5, 2005, date recorded on the transmitted appeal documents appears to be the date of transmission recorded by the transmitting fax machine. Although the claimant testified that his appeal was sent before midnight on August 4, 2005, and the date recorded on the appeal documents must therefore have been the date of receipt recorded by the department's fax machine, the August 4 date does not appear on the transmitted appeal documents. Even if the appeal was transmitted on August 4 as asserted by the claimant, given the language of the administrative rule, if the date of transmission does not appear on the transmitted appeal documents, the date of receipt by the department governs. That date is August 5, 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). The claimant has failed to establish a reason beyond his control for his untimely appeal. It was within his control to note the appeal deadline, and to craft and file his appeal before the deadline.

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uploaded 2006/02/03