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

THOMAS J THORISON, Claimant

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07400610AP


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 commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

A determination was dated and mailed to the correct address on record for the claimant on June 3, 2006, which was found that he did not report his work and wages when he filed claims for unemployment benefits for weeks 27 through 46 of 2006 (the calendar weeks ending July 2, 2006 through November 12, 2006). The appeal procedure prescribed by the department appeared on that determination. The determination also stated that any request for a hearing must be received or postmarked by June 19, 2006, in order to be timely.

Pursuant to Wis. Stat. § 108.09(2r) and Ch. DWD 140.01 of the Wisconsin Administrative Code, which requires that a request for hearing be made within 14 days of the date of mailing that determination, or the next succeeding business day if the last day falls on a weekend or a holiday, June 19, 2006, was the last day on which a timely request for hearing could be received or postmarked. The claimant's request for hearing was not postmarked until March 8, 2007, and not received until March 9, 2007.

The issue to be decided is whether the claimant's failure to file a timely request for hearing was for a reason beyond his control, as required by Wis. Stat. § 108.04(4).

The claimant acknowledged that the determination was mailed to his correct address as of June 3, 2006, but he asserted that he did not receive the determination at the time and did not learn about it until mid-February, 2007, when he reopened his claim for unemployment benefits. He explained that his wife at the time (now, his ex-wife) was taking in his mail, and hiding it or disposing of it. Once he received a duplicate of the determination, he filed his appeal. He contended that the appeal was therefore late for a reason beyond his control. The claimant's contention must be sustained.

The claimant testified at the hearing that he did not receive the initial determination. He speculated that this may have been because his ex-wife took it. The claimant based this speculation on the fact that his wife had been hiding or destroying his mail. At any rate, the claimant did not receive the initial determination, whether through postal error or through the interference of his wife. The claimant likewise testified that he did not take the precaution of getting a post office box in order to ensure that he received his mail. It was not clear from the claimant's testimony exactly when he discovered that his wife was taking his mail or if he was aware of it as of June of 2006. At any rate, the commission notes from the claimant's claim history that he last filed for benefits in week 46 of 2005, or week ending November 12, 2005. The initial determination was not issued until June of 2006. The claimant was not filing a current claim with the department. The initial determination was based on the claimant's failure to respond to a department request for information. Paperwork in the file indicates that the claimant's phone number had changed. The claimant should have taken steps to ensure that the department had his correct telephone number, and he should have taken steps to ensure that he receive all important correspondence. However, because he had not filed for benefit for about seven months, the claimant in this case would not have been aware that he was going to be receiving correspondence from the department, and it was not clear when he became aware that his wife was taking his mail. Under these circumstances, the commission concludes that the claimant's failure to file a timely request for hearing was for a reason beyond his control.

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

DECISION

The decision of the administrative law judge is reversed. Accordingly, the matter is remanded for a hearing on the merits.

Dated and mailed May 17, 2007
thorith . urr : 145 : 1  PC 711

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner



MEMORANDUM OPINION

The commission did not discuss witness credibility and demeanor with the ALJ who held the hearing. The commission did not reverse the ALJ based on a different assessment of witness credibility and demeanor. Rather, the commission reverses the ALJ because it reached a different result when it applied the law to the facts found by the ALJ.


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