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

CORY S MCKINLEY, Employee

INETEGRATED COMMUNICATIONS SERVICES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06003278MD


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 employee, in his petition for commission review, indicated that his request for hearing was late because of a medical condition from which he suffered. The commission, on October 13, 2006, issued an order remanding this case for a hearing before an ALJ of the department to provide the employee the opportunity to present medical evidence to demonstrate that he suffered from a health condition that prevented him from filing a timely request for hearing. On Wednesday, November 29, 2006, a hearing was held on this issue before an ALJ of the department. The ALJ held hearings on this same issue for six other cases that were petitioned to the commission and, like this case, remanded for a hearing on the employee's late request for hearing. In addition, the ALJ held hearings on this same issue for three separate cases that were not petitioned to the commission.

On December 8, 2006, the ALJ issued three appeal tribunal decisions, on the cases that were not petitioned to the commission, finding that, the employee did suffer from a medical condition and that he may have been incapacitated by this condition at the time of the hearing. The ALJ thus concluded that the employee's request for hearing was late for a reason beyond his control.

A synopsis of the testimony was prepared for the commission's review and the commission, after reviewing the record, and particularly the employee's medical evidence, concluded that the employee did not establish that his request for hearing was late for a reason beyond his control. As such, on December 27, 2006, the commission issued a decision dismissing the employee's request for hearing, and finding that the initial determination remained in effect.

The commission, upon learning that the ALJ's decisions were in conflict with the decisions made by the commission, discussed witness credibility and demeanor with the ALJ who held the hearings. Pursuant to its authority in Wis. Stat. § 108.09(6)(c), the commission sets aside its earlier decision. The commission has reconsidered the evidence in the record, and also considered the credibility impression of the ALJ and based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The department issued seven determinations to the claimant in March and April of 2006. The determinations denied benefits, found overpayment of benefits and assessed forfeitures against the claimant. The deadlines for appealing those determinations all occurred in April of 2006. The claimant first appealed in August of 2006.

The issue to be determined is whether the employee's appeals were late for a reason beyond his control.

The evidence in the record establishes that the determinations were properly mailed and that the employee received the initial determinations that were issued to him.

The employee explained at the hearing that he did not think he read the initial determinations and that he probably just stored them away. The employee explained that he was hospitalized in June and that he was suffering from a serious medical condition at that time.

The employee's certified medical report (UCB-474), indicates that the employee was suffering from depression and that he was assessed after being admitted to the hospital for a complicated migraine headache. The doctor opined that the doctor thought the employee's headache was related to his stress and underlying depression. The employee's doctor further indicated that he had not seen the employee during his appeal period, and that his depression could have prevented the timely filing of his petition.

While the employee's medical report does not definitively state that the employee's medical condition prevented him from filing a timely request for hearing, the employee's testimony combined with the employee's medical report supports this inference.

The commission therefore finds that the employee's failure to file a timely request for hearing was for a reason beyond his control, within the meaning of Wis. Stat. § 108.09(4)(c) and Chapter DWD 140 of the Wisconsin Administrative Code.

DECISION

The commission's prior decision, dated December 27, 2006, is set aside. The decision of the administrative law judge is reversed. Accordingly, the employee's request for hearing on the merits is granted. A hearing will be held as soon as possible.

Dated and mailed February 28, 2007
mckinco . urr : 180 : 1  PC 740  PC 733  PC 711

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

The commission, upon learning of the fact that the department's decisions were inconsistent with its own decision, held a conference with the ALJ to discuss witness credibility and demeanor. The ALJ indicated that it was quite apparent at the hearing that the employee was suffering from a medical condition that prevented him from filing a timely request for hearing. The ALJ explained that the employee sat, for much of the time with his head in his hands. The ALJ further noted that the employee had his father attend the hearing with him, and that it appeared that the employee depended greatly upon his father. The ALJ further noted that the employee was extremely passive during the hearing, and that the ALJ was convinced that the employee was not simply acting, but that he was suffering from a serious medical condition. The ALJ had reviewed the synopsis prior to the credibility conference and explained that the employee's condition simply was not apparent in the synopsis. The commission notes that the employee had numerous determinations that were adverse to him, and that required his action and this made his situation more complicated than an individual who has only one determination to deal with. The commission has determined that even though the medical report did not definitely conclude that the employee's illness was the reason his request for hearing was late, the employee's testimony, supported by ALJ's impression of the employee's medical condition, and the employee's hospitalization, supports a conclusion that the employee's request for hearing was late for a reason beyond his control, as well as the fact that the employee had numerous determinations that he needed to appeal.


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