CHANTELL C WILSON, Employee

JASMINES LEARNING HOUSE INC, 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 petition for review was filed by the employee.

Wisconsin Stat. § 108.09 (6)(a) provides, in relevant part, as follows:

"The department or any party may petition the commission for review of an appeal tribunal decision, pursuant to commission rules, if such petition 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. The commission shall dismiss any petition if 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 . . ."

Wisconsin Admin. Code § LIRC 1.02 provides, in relevant part, as follows:

All petitions for commission review shall be filed within 21 days from the date of mailing of the findings and decision or order . . .

Wisconsin Admin. Code § LIRC 1.025 provides, in relevant part, as follows:

(1) Petitions for review may be filed by mail or personal delivery. A petition for review filed by mail or personal delivery is deemed filed only when it is actually received by the commission or by the division of the department to which the petition is mailed, except that petitions for review in unemployment insurance cases under s. 108.09 or 108.10, Stats. which are filed by mail or personal delivery are deemed filed when received or postmarked as provided for in s. LIRC 2.015.

The administrative law judge's decision having been dated and mailed on September 1, 2006, the last day on which a timely petition for review could have been filed was September 22, 2006. The petition for review was filed on October 4, 2006. The employee explained that on September 21, 2006, she received a letter stating there was a change with her benefits, which stopped her from sending in her appeal. Later she was told that she misunderstood the letter and so she filed a late appeal. The letter the employee is referring to was an initial determination dated September 20, 2006, which stated:

A DECISION DATED 09/01/06 CHANGED THE REMAINING BENEFITS PAYABLE TO YOU. YOUR REMAINING BENEFIT ENTITLEMENT WAS $54.00 BUT AS A RESULT OF THE DECISION, THIS AMOUNT HAS BEEN CHANGED TO $ 1,476.00. REFER TO THAT DECISION TO DETERMINE IF BENEFITS ARE CURRENTLY PAYABLE TO YOU. IF YOU DISAGREE WITH OR HAVE ANY QUESTIONS ABOUT THIS NOTICE, CALL A CLAIMS SPECIALIST.

BENEFIT YEAR BEGAN: 01/29/06
BENEFIT YEAR ENDS: 01/27/07

The employee further states that after receiving the document she contacted a claims specialist who referred her to the hearing office. The employee states that a receptionist at the hearing office explained the document to the employee at which time she submitted her petition letter. The commission believes that the employee was reasonably confused by the above information. The employee followed the instructions on the document to contact a claims specialist. Given the above facts, and the fact that the employee received the document near the end of the petition period, the commission finds that the employee's petition was late for a reason beyond her control.

The commission therefore finds that the petition for commission review was not timely but that the petitioner has shown probable good cause that the reason for having failed to file the petition timely was beyond the petitioner's control, within the meaning of Wis. Stat. § 108.09 (6)(a).

The commission first notes that its review is based on evidence already presented at the hearing. While the commission does have the discretion to order the taking of additional evidence in matters before it, that authority is exercised only in a few exceptional circumstances. Here, there was adequate notice of the fact that the hearing would be the employee's only opportunity to present evidence. There is no credible and convincing evidence that this opportunity was improperly limited at the hearing, or that the employee has discovered material noncumulative evidence since the hearing which she could not have known of before the hearing. Finally, the employee has not advanced any other compelling reason to grant a new hearing. Therefore, further hearing will not be granted.

The employer testified that the employee was discharged after she caused a disruption at the employer's facility which included calling the owner a derogatory name and threatening physical violence against the owner. The employee denied causing a disruption and contended that she did not direct profanity at the employer until after she was discharged. The critical question in this case is one of credibility. The employer's version of the facts and the employee's version of the facts are inconsistent. The commission realizes that it is seldom easy to resolve a case with two such conflicting versions of the facts. However, the administrative law judge, who could observe the demeanor of witnesses and therefore was in a good position to make a determination as to credibility, did not credit the employee's version. The commission has found no compelling reason in the testimony or elsewhere in the record to question the administrative law judge's credibility determination. Therefore it will defer to the judgment of the administrative law judge as to credibility.

The petition for review is accepted. The decision of the administrative law judge is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 3 of 2006, and until seven weeks elapse since the end of the week of discharge and the employee earns wages in covered employment after the week of discharge equaling at least 14 times the weekly benefit rate that would have been paid had the discharge not occurred. The employee is required to repay the sum of $1,921.00 to the unemployment reserve fund.

Dated and mailed October 27, 2006
wilsoch . upr : 132 : 1  PC 731

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

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