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

ASHLEY E BEHNKE, Employee

ROYAL PETS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04005276MD


 

PROCEDURAL HISTORY
 
On August 17, 2004 (week 34), the employee initiated a claim for unemployment insurance benefits reporting a discharge from the employer, Royal Pets Inc. Departmental records reflect that she provided an Oregon, Wisconsin address of record. Following an investigation, an adjudicator issued a determination on August 26, 2004 allowing benefits to the employee, finding that her discharge in week 34 of 2004 was not for misconduct connected with her employment. A separate determination, issued on the same day, held that the employee was called upon with due notice to report for work actually available but was unavailable for such work; as a consequence, the wages that she could have earned had she performed the work were used to reduce her eligibility for partial unemployment insurance benefits.

The employer submitted a timely letter of appeal which was treated as a timely appeal to both the separation and due notice determinations. On September 17, 2004, hearing notices were mailed to both the employer and employee. Hearing number 04004484MD was assigned to the separation of employment issue, while 04004483MD was assigned to the due notice of work available issue. The hearing notices directed both the employee and the employer to appear in person for the hearings at 10:30 a.m. on September 27, 2004. The front of the hearing notice directed the parties to the reverse for important information. The reverse side of the hearing notice warned the employee that the hearing would proceed without her if she did not appear within five minutes of the hearing start time.

On September 27, 2004, only the employer appeared for the hearings. At that time, the employer withdrew its request for a hearing on the due notice issue. (1)   The employer did not withdraw its request for a hearing on the separation issue and the hearing was conducted without the employee, given her failure to appear.

On September 27, 2004, the Administrative Law Judge (ALJ) Ottenstein issued an appeal tribunal decision, reversing the determination, finding that the employee's discharge was for misconduct connected with her employment, she was ineligible for unemployment insurance benefits and was required to repay $486.00 in benefits which she received but was not entitled to.

Within 21 days, the employee submitted a letter explaining providing the following:

I, Ashley E. Behnke, would like to file an Appeal with my existing claim. I was not notified of Appeal, and was unaware that my appearance was necessary. My check is being held until I make this Appeal.

The envelope containing the above letter reflected the same Oregon, Wisconsin address of record and there is no evidence that the September 17, 2004 hearing notice was returned as undeliverable.

On October 7, 2004, the September 27, 2004 appeal tribunal decision was set aside pending resolution of the issue of whether the employee's failure to appear was with good cause.(2)

On October 22, 2004, a hearing notice was mailed to the employee informing her of a 1:00 p.m. telephone hearing on Wednesday, November 3, 2004; the issue was whether she had good cause for failing to attend the September 27, 2004 hearing.

ALJ Weisbrod was to conduct the failure to appear hearing on November 3, 2004 and a digital record of his attempt exists. The record reflects that, when the employee was contacted by ALJ Weisbrod, the employee informed him that her address had changed to a Madison, Wisconsin address and that she did not wish to pursue the matter further. ALJ Weisbrod accepted her withdrawal and indicated the he would be sending her something in the mail. After disconnecting with the employee, ALJ Weisbrod contacted the employer's representative, Debbie Jackson, notifying her of the employee's withdrawal. The employer had previously asked to participate in the hearing. That same day, the ALJ placed a "hold payment" on the employee's benefit eligibility.

On November 4, 2004, ALJ Weisbrod issued an "APPEAL TRIBUNAL DECISION WITHDRAWAL," indicating that the employee had withdrawn her request for a hearing; it was mailed to the Madison, Wisconsin address provided by the employee on November 3, 2004. The cover page explained "NOT APPLICABLE" in the "Appeal Must Be Received or Postmarked By" section. Additionally, a "NOTE" on the cover page directed the employee to:

PLEASE SEE ATTACHED DECISION WHICH AMENDS AND REINSTATES APPEAL TRIBUNAL DECISION #04004484MD. THE OVERPAYMENT AMOUNT IS AMENDED TO $590.

The reverse of the form had an "APPEAL RIGHTS" section mentioning a 21-day appeal deadline for the "attached decision" and under the "WITHDRAWAL DECISION" section explained that such decisions were not appealable but that a request to retract a withdrawal and reinstate the prior request for hearing could be made in writing, stating the reason for retraction, and received within 21 days from the date of the withdrawal decision.

The decision written by ALJ Weisbrod and attached to the cover page explained the procedural history related to the discharge determination, hearing, good cause letter and the employee's withdrawal request. The decision reinstated the September 27, 2004 decision, amending the overpayment amount to $590 that the employee was required to repay. (3)

The hearing file reflects that this was returned to the hearing office with the following written on the envelope, "Return to Sender Not at this address."  
 

DEPARTMENTAL RECORDS REGARDING COLLECTION EFFORTS

Departmental records reflect that the benefit overpayment section began collection efforts with the employee by mailing billing notices to her address of record.

On June 20, 2005, a notice of intent to certify debt with the Wisconsin Department of Revenue was mailed to the employee.

On June 29, 2006, collection records reflect that the employee telephoned the collections department indicating that she wanted to appeal the matter to the Labor and Industry Review Commission and that she had not received the appeal tribunal decision. The notes reflect that a copy of the decision was then sent to the employee's new address of record, in Stoughton, Wisconsin.

On October 19, 2005, a $612 debt was certified to the Department of Revenue. The repayment total had increased $22 due to the addition of collection fees.

On May 18, 2006, a payment of $291 was received, described as Department of Revenue and another $5.03 in levy costs was added to the overpayment amount.

On June 21, 2006, a letter of legal action for payment options was created by the collections department to address the remaining $309 overpayment the employee was required to repay.

In August and September 2006, billing notices were sent to the employee at a S. Park Street, Madison Wisconsin address of record.  
 

REQUEST FOR RECONSIDERATION

On October 3, 2006, the Madison Unemployment Insurance Hearing Office received correspondence from the employee disputing the requirement that she repay the overpaid monies and requesting reconsideration of her claim. The letter was dated by the employee on September 19, 2006 and was dated stamped received by the Vocational Rehabilitation Department on September 22, 2006.

The employee's correspondence was forwarded to the commission for review and the first issue is how to treat the claimant's letter.

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 formatted, is an appealable document. The claimant's letter thus was properly forwarded to the commission as a petition for review of the withdrawal decision.

Wis. Stat. § 108.09(6) provides, as follows:

Commission Review. (a) 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. If the petition is not dismissed the commission may take action under par. (d) .

(b) Within 28 days after a decision of the commission is mailed to the parties, the commission may, on its own motion, set aside the decision for further consideration and take action under par. (d) .

(c) On its own motion, for reasons it deems sufficient, the commission may set aside any final determination of the department or appeal tribunal or commission decision within 2 years from the date thereof upon grounds of mistake or newly discovered evidence, and take action under par. (d) . The commission may set aside any final determination of the department or any decision of an appeal tribunal or of the commission at any time, and take action under par. (d) , if the benefits paid or payable to a claimant have been affected by wages earned by the claimant which have not been paid, and the commission is provided with notice from the appropriate state or federal court or agency that a wage claim for those wages will not be paid in whole or in part.

(d) In any case before the commission for action under this subsection, the commission may affirm, reverse, modify or set aside the decision on the basis of the evidence previously submitted, may order the taking of additional evidence as to such matters as it may direct, or it may remand the matter to the department for further proceedings.

Since the employee's petition was not received within 21 days, the second issue is if probable good cause exists that the reason for having failed to file the petition timely was beyond the employee's control within the meaning of Wis. Stat. § 108.09(6)(a). 
 

Nonreceipt of Original Withdrawal Decision

While it does appear that the employee did not receive the Withdrawal decision when originally mailed, the commission finds that this failure does not establish good cause that her failure was for a reason beyond her control. In particular,

(1) the employee verbally withdrew on November 3, 2006,

(2) benefit payment ceased after she withdrew,

(3) as of June of 2005, the employee contacted the collections department regarding the repayment requirements and was mailed a copy of the withdrawal decision, at which time she referenced appealing the matter to the commission, and

(4) collection efforts were made with a repayment of $291 in May of 2006.

To summarize, the employee knew of the adverse decision and repayment requirements for over one year prior to her petition. She failed to explain her unnecessary delay in filing the petition since that time and failed to establish a reason beyond her control.  
 

Good Cause related to the Withdrawal Itself

However, in Glasschroeder v. A 1 A Plus, UI Dec. Hearing Nos. 03401009AP and 03401010AP (LIRC March 4, 2004), the commission pointed out a flaw in the format of withdrawal decisions themselves. In particular, the withdrawal decision does not set forth an appeal deadline in the applicable section of the cover page. The reverse of the cover page explains that a withdrawal decision is not appealable but a request to retract a withdrawal may be submitted within 21 days of the date of the withdrawal decision. To further complicate matters related to the petition process, the cover page directed the employee to see the attached decision, referencing the reinstatement of the earlier decision. The commission concludes that these circumstances constitute a reason beyond the claimant's control for filing a petition late with the commission. See also Brewer v. Radtke Contractors Inc., UI Dec. Hearing No. 06400442AP (LIRC June 21, 2006). Glasschroeder defined the scope of the commission's review in such withdrawal cases to the specific issues arising under the standards created by the department's rule.

Thus, the next issue is whether the employee should be allowed to retract her withdrawal pursuant to the standards set forth by Wis. Admin. Code § DWD 140.05(2), which provides that a request to retract a withdrawal:

...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.

While the hearing file reflects that employee did not receive the withdrawal decision mailed to her address of record on November 4, 2006, collection records reflect that a copy was sent to her in June 2005. The employee's letter dated September 19, 2006 was not received within 21 days of the original or the duplicate mailing. More importantly, given the procedural history of the case, the letter fails to establish good cause for the employee's retraction request.

Lastly, the employee asserts that the requirement that the employee repay the overpayment amount is improper given the original allowance of benefits and the commission analyzes whether further Commission review is required under Wis. Stat. § 108.09(6)(c).

Within two-years a final determination, appeal tribunal decision or commission decision, the commission may act under Wis. Stat. § 109.06(c) in the case of "mistake or newly discovered evidence."

The employee's September 2006 correspondence fails to offer any newly discovered evidence which would justify Commission action under Wis. Stat. § 108.09(6)(c). Additionally, while the "mistake" language of Wis. Stat. § 108.09(6)(c) is not limiting and includes mistakes of law as well as of fact, (4)   the record is lacking any evidence of mistake. Specifically, the employee received the hearing notice and the earlier decision and had the right to withdraw by "choosing not to continue to participate in the hearing." See Admin. Code § DWD 140.05(1). Also, the address change in November 2004 was at the employee's prompting. Finally, the procedures regarding the set aside and reinstatement were proper pursuant to Wis. Stat. § 108.09(4)(e).

The commission therefore finds that the employee's petition was filed late but that it was late for a reason beyond the employee's control, within the meaning of § 108.09(6)(a).

The commission further finds that the employee's request for hearing was withdrawn, within the meaning of Wis. Stat. § 108.09(4)(a), and that the employee did not file a request to retract her withdrawal that met the requirements of Wis. Admin. Code § DWD 140.05(2).

The commission finally declines to take further action under Wis. Stat. § 108.09(6)(d) as neither mistake nor newly discovered evidence has been established under Wis. Stat. § 108.09(6)(c).


DECISION

The withdrawal decision of the administrative law judge is affirmed. Accordingly, the request for hearing will not be reinstated and the November 4, 2004 withdrawal decision reinstating and amending the September 27, 2004 appeal tribunal decision shall remain in effect.

Dated and mailed October 31, 2006
behnkas . urr : 150 : 2   PC 712.9  PC 718  PC 731  PC 740     

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner




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Footnotes:

(1)( Back ) On October 6, 2004, a withdrawal decision was issued for the due notice hearing number 04004483MD.

(2)( Back ) When the September 27, 2004 appeal tribunal decision was set aside, the determination was the effective decision and benefit payment resumed.

(3)( Back ) Departmental records reflect that the amount was amended because another week of unemployment insurance benefits was paid to the employee when the September 27, 2004 decision was set aside pending resolution of the failure to appear hearing.

(4)( Back ) See La Crosse Footwear v. LIRC, 147 Wis. 2d 419, 434 N.W.2d 392 (Ct. App. 1988).

 


uploaded 2006/11/01