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

GERALDINE LUCKETT, Employee

INDEPENDENCE FIRST INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06004487MD


PROCEDURAL HISTORY

On November 10, 2006, a determination held that in week 39 of 2006, the calendar week ending September 30, 2006, the employee voluntarily terminated her employment with Independence First Inc. (Independence) and her quitting was not within any exception to allow for the immediate payment of benefits. The determination specifically provided, in the "EFFECT" section,

NO BENEFITS ARE PAYABLE FROM 09/24/06 THROUGH 10/28/06 AND UNTIL THE EMPLOYEE EARNS WAGES AFTER THE WEEK OF THE QUIT EQUALING AT LEAST $1,364.00 IN COVERED EMPLOYMENT.

On the same day another determination was issued, finding that in week 39 of 2006, the employee voluntarily terminated her employment with Odyssey Healthcare GP LLC (Odyssey), her quitting was not within any exception and provided the same effective language.

On November 16, 2006, the employee mailed an appeal of the Odyssey determination. The appeal appears to have consisted of two pages, each specifically listing the Odyssey determination number. One page was processed as an appeal to the Odyssey determination while the other page was processed as a timely appeal to the Independence determination. The confirmations of timely appeal were sent on November 22, 2006 (Odyssey) and November 27, 2006 (Independence), with the document packets mailed for both hearings on December 1, 2006.

On December 5, 2006, a computer comment screen entry reflects that

12/5/06 @ 1:33 EE CALLED TO WD APPEAL. SHE DOES HAVE ANOTHER HEARING 06004486 [Odyssey hearing] AND IS NOT WD THAT. . .JRB

Based upon that contact, a withdrawal was issued that day, signed by Administrative Law Judge (ALJ) Robert Junceau Jr. The withdrawal indicated, "NOT APPLICABLE" in the appeal deadline section. The reverse side of the withdrawal decision provided:

A party cannot appeal a withdrawal decision. However, the appellant may submit a request to retract the withdrawal and to reinstate the prior request for hearing. This request must be in writing, must be received within 21 days from the date of the withdrawal decision and must include the reasons for the retraction.

On December 6, 2006, a hearing notice was sent apprising the employee of her December 18, 2006 hearing involving the separation of employment with Odyssey. The employer did not appear for the hearing and, on December 18, 2006, ALJ Mary Diezel issued an appeal tribunal decision (ATD) modifying and reversing the determination, finding that the employee did not quit but was discharged after being transferred to an out of state position and her discharge was not for misconduct connected with her employment. Benefits were allowed.

Departmental records further reflect that on January 12, 2007, the employee contacted the hearing office regarding the Odyssey matter and asked whether Odyssey was appealing and when she would receive her benefits. After being given general information, it was suggested that she could contact a claims specialist. Approximately 35 minutes later the department's Odyssey records reflect:

1/12/07 @ 12:15 EE CALLED SHE SAID SHE SPOKE TO CLAIM SPECIALIST AND THEY TOLD HER SHE WILL NOT BE RECVG BENEFITS BECAUSE SHE DIDNT APPEAL A SECOND LID RE TO A DIFFERENT ER. SHE ASKED WHAT SHE SHOULD DO NOW. I TOLD HER TO GO AHEAD AND SEND IN THE APPEAL AND IT WILL BE LATE AND TO MAKE SURE SHE EXPLAINS IN THE LETTER THE REASON FOR IT BEING LATE. SHE SAID SHE DIDNT KNOW SHE HAD TO APPEAL BOTH DETERMINAIONS BECAUSE SHE GOT TRANSFERRED TO A DIFFERENT LOCATION FOR ONE OF HER ER. JRB

That same day the employee's retraction request for the Independence withdrawal was postmarked. In it, she referenced her conversation with the claim specialist and the need to appeal the Independence determination.

Wis. Admin. Code § DWD 140.05 Withdrawal of appeal and retraction, provides

(1) An appellant may withdraw its appeal at any time before the issuance of a decision on the merits by notifying the hearing office or by choosing not to continue to participate in a hearing. The administrative law judge shall issue a withdrawal decision after determining that an appeal has been withdrawn.

(2) An appellant may submit a request to retract its withdrawal and reinstate its appeal. The retraction request 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.

(3) If the hearing office receives a timely retraction request before the issuance of a withdrawal decision and the request establishes good cause for the retraction, the administrative law judge shall acknowledge the request by letter to the appellant. If a timely retraction request is received by the hearing office after issuance of the withdrawal decision and the request establishes good cause for the retraction, the administrative law judge shall issue a decision setting aside the withdrawal decision and the hearing office shall schedule another hearing.

(4) If the hearing office receives a retraction request before or after the issuance of a withdrawal decision and the request does not establish good cause for the retraction, the administrative law judge shall deny the request by letter to the appellant.

There appears to be confusion both on behalf the employee and the department regarding the nature of the remedy sought by the employee with her January 12, 2007 correspondence. Had the employee's letter been received by the hearing office within 21 days of the issuance of the withdrawal decision, the ALJ would have had authority to act on the request pursuant to Wis. Admin. Code § DWD 140.05. Since the request was received after 21 days, the matter was properly forwarded to the Labor and Industry Review Commission (commission). In particular, 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 was an appealable document. Thus, the claimant's letter is a petition for review of the withdrawal decision.

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). Wis. Stat. § 108.09(6)(a) further 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."

Given the issuance date of the withdrawal decision, the employee's letter was late and the next issue is whether she has established probable good cause that her petition was late for a reason beyond her control.

The commission has repeatedly held that the standard format of the department's withdrawal decisions, which fails to explain appeal rights or a specific appeal deadline, is a flaw sufficient to find the employee's failure to timely appeal was a reason beyond the claimant's control. (1)  See Glasschroeder v. A 1 A Plus, UI Dec. Hearing Nos. 03401009AP and 03401010AP (LIRC March 4, 2004); Young v. Milwaukee Public School and Food Team Suite 730, UI Dec.. Hearing Nos. 4611502MW, 04611503MW, 04611504 MW and 04611505MW (LIRC September 2, 2005); Wambold v. Apple Steel Rule Die Co. Inc., UI Dec. Hearing No. 05605371MW (LIRC November 23, 2005); Brewer v. Radtke Contractors Inc., UI Dec. Hearing No. 06400442AP (LIRC June 21, 2006); and Behnke v. Royal Pets Inc., UI Dec. Hearing No. 04005276MD (LIRC October 31, 2006). These cases have also defined the scope of the commission's review of such matters to be the specific issues arising under the standards created by the department's rule, Wis. Admin. Code § DWD 140.05.

Most recently, in Behnke v. Royal Pets Inc., UI Dec. Hearing No. 04005276MD (LIRC October 31, 2006), the commission in its review of a withdrawal decision denied a retraction request, filed over 21 days after the withdrawal, because the letter failed to establish good cause for the retraction request. Previously, in Young v. Milwaukee Public School and Food Team Suite 730, UI Dec. Hearing Nos. 04611502MW, 04611503MW, 04611504 MW and 04611505MW (LIRC September 2, 2005), Wambold v. Apple Steel Rule Die Co. Inc., UI Dec. Hearing No. 05605371MW (LIRC November 23, 2005), and Brewer v. Radtke Contractors Inc., UI Dec. Hearing No. 06400442AP (LIRC June 21, 2006), the commission's denials exclusively referenced the 21 day "deadline" after explaining the procedural history. Yet, in each of those three cases, the claimants explicitly appealed the determinations and the determinations were clear in the effect upon each unemployment benefit claim.

In this case, while the employee's request was received more than 21 days after the withdrawal, the procedural circumstances lead the commission to distinguish it from Young, Wambold and Brewer. Specifically, the employee did not affirmatively appeal the Independence determination; instead the appeal appears to have been "picked up" by the hearing office. The Independence determination was adverse to her, would have negatively affected her eligibility for benefits even if she prevailed on the Odyssey matter and had the same appeal period. While the commission expects parties to appeal each determination disagreed with even if multiple determinations are issued in connection with a single claim for unemployment insurance benefits, (2)   the commission does not find the hearing office action to be error. In a similar vein, while it would have been ideal had the hearing office staff worker explained the role of the Independence appeal in the employee's ultimate eligibility for benefits, when the employee telephoned her withdrawal, the failure to do so was also not error. Yet it is these same circumstances when viewed in light of additional departmental confusion regarding the employee's remedy, which the commission believes constitutes good cause for the retraction request. Without understanding the relationship between the Independence and Odyssey determinations, the employee did not "discover" the consequences of the withdrawal until several weeks after the Odyssey decision when payment of unemployment insurance benefits failed to start. The timing of the employee's retraction request was directly tied to this discovery and, in this context, was reasonably prompt after the issuance of the withdrawal.

The commission therefore finds that

(1) the employee's request for hearing was withdrawn, within the meaning of Wis. Stat. § 108.09(4)(a),

(2) the employee's petition for commission review was late for a reason beyond her control within the meaning of Wis. Stat. § 108.09(6)(a), and

(3) the commission finds that under its review, the withdrawal retraction requirements set forth by Wis. Admin. Code § DWD 140.05 have been met.

 
DECISION

The withdrawal decision of the administrative law judge is set aside. Accordingly, a hearing will be scheduled as soon as possible. Upon completion of the hearing, the administrative law judge shall issue a decision which addresses the applicability of Wis. Stat. § 108.04(7)(o) in determining the employee's eligibility for benefits.(3)

Dated and mailed February 8, 2007
lettida . urr : 150 : 1  PC 718  PC 749

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner



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Footnotes:

(1)( 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.

(2)( Back ) In Schicker v. Midas Muffler Shop, UI Dec. Hearing No. 01603593MW (LIRC September 13, 2001), the commission held that multiple determinations "govern different issues and fall under different statutory provisions and, even when they are issued on the same date, the department and commission fully expect employees to read the determinations in their entirety and file an appeal from each determination disagreed with."

(3)( Back ) Wis. Stat. § 108.04(7)(o) provides Wis. Stat. § 108.04(7)(o) provides that the general quitting disqualification does not apply to an employee who terminates his or her work in one of 2 or more concurrently held positions, at least one of which consists of more than 30 hours per week, if the employee terminates his or her work before receiving notice of termination from a position which consists of more than 30 hours per week. Additionally Wis. Stat. § 108.04(7)(h) provides, in relevant part, that if this exception applies [t]he department shall charge to the fund's balancing account benefits paid to an employee that are otherwise chargeable to the account of an employer that is subject to the contribution requirements of ss.108.17 and 108.18 .

 


uploaded 2007/02/12