Wis.LIRC UC Decision: Thies, Mark - March 10, 2006 - PC 711 - Hearing, Late Request For Hearing - employee decided not to appeal misconduct determination because he anticipated re-employment - later learned it affected potential future benefits - determination had stated that base period wages from the employer could not be used on this "or any later claim" - failure to appeal not for reason beyond control

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

MARK J THIES, Employee

NOR LAKE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06200016EC

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 March 10, 2006
thiesma . usd : 115 : 1 PC 711

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

A department determination concluding that the employee was discharged for misconduct and denying benefits as a result was dated and mailed on April 19, 2005, and stated on its face that it would become final unless a written appeal was postmarked or received by May 3, 2005.

This determination also stated that:

Base period wages from work for this employer prior to the discharge cannot be used to compute the maximum benefit amount for this or any later claim.

The employee's appeal was postmarked on December 22, 2005, and received by the department on December 23, 2005, more than seven months after the deadline.

The employee testified that, during the appeal period, he made a decision not to file a request for hearing because he was confident that he would soon find work and would not need to rely upon unemployment benefits. The employee also explained that he was unaware during the appeal period of the effect the determination could have on his eligibility for future benefits and did not discover this until he was laid off from a subsequent employer.

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

During the appeal period, the employee made a conscious decision not to file an appeal because he believed he would soon find work. By definition, such a decision was one within his control. See, Huse v. Society Insurance, UI Hearing No. 04404252AP (LIRC Jan. 27, 2005).

It was also within the employee's control, if, as he has represented, he was unfamiliar with the unemployment insurance program and uncertain as to the determination's impact, to contact the department or some other appropriate resource for assistance. See, Varnado v. MacMoore Ptrshp McDonald's, UI Hearing No. 04601995MW (LIRC March 26, 2004); Thelen, supra. It should be noted in this regard that the reference in the determination to "any later claim" should have alerted the employee to the possibility that the determination could have some effect on his eligibility for future benefits.

cc: Nor Lake

[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]

uploaded 2006/03/13