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

JOSHUA J BREWER, Employee

RADTKE CONTRACTORS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06400442AP


On March 15, 2006, an administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued an "Appeal Tribunal Decision - Withdrawal" document for hearing number 06400442AP.

On May 17, 2006, the claimant mailed a letter to the commission, received on May 18, 2006, requesting that the commission review his case. The commission treats this letter as a petition for review of the "Appeal Tribunal Decision - Withdrawal."

The commission has considered the petition and the positions of the parties, and it has reviewed the record in these matters. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Departmental records reflect that on November 14, 2005, the claimant initiated a claim for unemployment insurance benefits reporting a quitting from the employer, Radtke Contractors Inc. The claimant filed for unemployment insurance benefits in the calendar weeks ending November 19, 2005 (week 47) through January 7, 2006 (week 1). Those records further reflect that the claimant reported partial wages in the calendar weeks ending December 10, 17 and 24, 2005 (weeks 50, 51 and 52).

On November 23, 2005, an initial determination was issued finding that the claimant's quitting in the calendar week ending November 12, 2005 (week 46), was not within any exception to allow the payment of benefits. The determination provided:

THE EMPLOYEE QUIT BUT NOT FOR A REASON WHICH WOULD ALLOW THE PAYMENT OF BENEFITS.

EFFECT

NO BENEFITS ARE PAYABLE FROM 11/06/05 THROUGH 12/10/05 AND UNTIL THE EMPLOYEE EARNS WAGES AFTER THE WEEK OF THE QUIT EQUALING AT LEAST $1,260.00 IN COVERED EMPLOYMENT.

The initial determination had a December 7, 2005 appeal deadline. On February 20, 2006, the claimant submitted an appeal to the Fox Valley Hearing Office, explaining that he filed an appeal based upon a conversation he had that morning. The appeal was properly processed as a late appeal.

On March 15, 2006, ALJ Jo Ellen Rehbein conducted a hearing with the claimant. (1)   The digital record of the hearing reflects that, after the claimant explained that he believed he would receive back benefits for the weeks he was unemployed after he earned four times his weekly benefit rate with the new employer, the administrative law judge attempted to explain the application of the unemployment insurance statutes upon the claimant's eligibility.  (2)   The claimant agreed to withdraw his appeal and, that same day, the administrative law judge issued the withdrawal decision.

On May 17, 2006, the claimant mailed a letter to the commission, received on May 18, 2006, restating the circumstances leading to his unemployment claim and, once again, incorrectly claiming that the November 23, 2005, determination indicated "all back pay would be in[sic] paid." He also mistakenly referred to the ALJ as a male. He requested that the commission review his case and help him pursue further action to allow him to collect the money that was "owed" to him.

The first issue before the commission is the treatment of the claimant's letter to the commission.

In Glasschroeder v. A 1 A Plus, UI Dec. Hearing Nos. 03401009AP and 03401010AP (LIRC March 4, 2004), the commission held that an "Appeal Tribunal Decision - Withdrawal", as currently formatted (3),  is an appealable document. The claimant's letter is a petition for review of the withdrawal decision.

Wis. Stat. § 108.09(6)(a) provides that the commission shall dismiss any petition not timely filed "unless the petitioner shows probable good cause that the reason for having failed to file the petition timely was beyond the control of the petitioner." A petition for commission review is timely if it is received by the department or commission or postmarked within 21 days after the appeal tribunal decision was mailed to the party's last-known address. See Wis. Stat. § 108.09(6)(a).

Given the issuance date of the withdrawal decision, the claimant's letter was clearly late within the meaning of the above and the next issue is whether he has established probable good cause that the petition was late for a reason beyond his control.

In this case, the withdrawal decision does not explain appeal rights or a deadline. This is a flaw sufficient to find the claimant's failure to timely appeal was for a reason beyond his control. See Glasschroeder v. A 1 A Plus, UI Dec. Hearing Nos. 03401009AP and 03401010AP (LIRC March 4, 2004).

Now that the commission has jurisdiction to deal with the claimant's request for assistance, an effective retraction of withdrawal request, Glasschroeder directs the commission to ask if:

(1) there in fact had been a withdrawal,
(2) the request to retract met the requirements of the department's rule, and
(3) there was "good cause" to retract the withdrawal.

In this case, while the claimant's verbal withdrawal at the hearing meets the first requirement, his retraction request does not meet the second. In particular, Wis. Admin. Code § DWD 140.05(2) provides that a request to retract a withdrawal and reinstate an appeal:

. . . shall be in writing and state a reason for the request. The administrative law judge may not grant a request to retract a withdrawal unless the request establishes good cause for the retraction and is received within 21 days after the withdrawal decision was mailed to the appellant.

Since the claimant had no contact with the department in the 21-day period after the withdrawal decision was issued in this case, he fails to establish that his request to retract met the 21-day requirement of Wis. Admin. Code § DWD 140.05(2) and the analysis of the third requirement is unnecessary.

The commission therefore finds that the claimant's petition was filed late but that it was late for a reason beyond the claimant's control, within the meaning of § 108.09(6)(a). The commission further finds that the claimant's request for hearing was withdrawn, within the meaning of Wis. Stat. § 108.09(4)(a), and that the claimant did not file a request to retract his withdrawal that met the requirements of Wis. Admin. Code § DWD 140.05(2).

DECISION

The withdrawal decision of the administrative law judge is affirmed. Accordingly, the request for hearing will not be reinstated and the Initial Determination shall remain in effect.

Dated and mailed June 21, 2006
brewejo . urr : 150 : 6   PC 718  PC 731 PC 749

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner



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Footnotes:

(1)( Back ) Because the claimant's appeal was late, the hearing was scheduled for the purpose of determining why his appeal was late. Wis. Stat. §108.09(4)(c) provides that a party is entitled to a hearing on the merits of his/her claim, only if he or she establishes that his/her appeal is late for a reason beyond his/her control. "The late appeal standard is a strict one; few reasons meet it, and they are usually extraordinary." Jerome Kosmoski, UI Dec. Hearing No. S9900245MW (LIRC March 22, 2000).

(2)( Back ) The conjuction "and" between the two phrases means that no benefits are payable while either condition is in effect, namely during the period of November 6 through December 10, 2005 and for the period before the employee has earned covered wages of at least $1,260.00 after the week of the quitting. To improperly interpret this provision as argued by the claimant, that once he earns the requalifying amount, he is eligible for "backpay" of benefits for the period of November 6, 2005 through December 12, 2005 would effectively void the disqualification provisions set for by this statutory section, Wis. Stat. §108.04(7).

(3)( Back ) Since Glasschroeder was issued, the hearing offices have not made any apparent changes to the "Appeal Tribunal Decision Withdrawal" format. In the claimant's case, as in Glasschroeder, the withdrawal decision has "Not Applicable" written in the "Appeal Must Be Received or Postmarked By:" section. Additionally, the reverse of the form has an "APPEAL RIGHTS" section mentioning a 21-day appeal deadline and a "WITHDRAWAL DECISION" section explaining that such decisions are not appealable but that a request to retract a withdrawal and reinstate the prior request for hearing may be made in writing, stating the reason for retraction and received within 21 days from the date of the date of the withdrawal decision.

 


uploaded 2006/06/26