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

ROBIN A FISCHER, Employee

SHOWERS ARCH MANAGEMENT INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07001619MD


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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee's request for hearing is dismissed, and the department determination remains in effect.

Dated and mailed June 7, 2007
fischro2 . usd : 115 : 1  PC 711

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION


A department determination (ID No. 070168852, Hearing No. 07001619MD) denying benefits was dated and mailed on March 24, 2007, and stated on its face that it would become final unless a written appeal was postmarked or received by April 9, 2007. The employee's appeal was postmarked on April 10, 2007, and received by the department on April 11, 2007.

The department, in correspondence dated and mailed on April 12, 2007, provided the employee a period of seven days to explain her late appeal. This correspondence properly stated the hearing number but mistakenly stated the subject determination number as "070166032." The employee filed a response to this correspondence on April 20, 2007. In this response, the employee explained that she did not appeal determination number 070166032, but instead determination number 070168852.

Department determination number 070166032, dated and mailed on March 23, 2007, and stating an appeal deadline of April 6, 2007, found that the employee was discharged but not for misconduct, and awarded benefits. The named employer in that determination is Rudolph Enterprises LLC, Comfort Keepers #231. This determination stated, "Benefits are allowed with respect to this issue only. Actual payment of benefits will depend on the resolution of another issue."

The department, in correspondence dated and mailed on April 26, 2007, confirmed that the employee had filed a late appeal. This correspondence properly stated the determination ID number, the hearing number, and the named employer, Showers Arch Management, Inc.

The employee has failed to explain to the department or to the commission why her appeal was filed the day after the appeal deadline.

The standard for excusing a failure to timely appeal a department determination is "reason beyond control." This is a very rigorous standard, and only extraordinary reasons have been found by the commission to satisfy it. See, Jerome Kosmoski, UI Hearing No. S9900245MW (LIRC March 22, 2000). It was certainly within the employee's control to read the determinations when she received them, and to note their separate issues, identification numbers, and appeal deadlines. See, Thelen v. Toms Quality Millwork, Inc, UI Hearing No. 99003677MD (LIRC Dec. 22, 1999); Pische v. Baumgarten Drywall, UI Hearing No. 04403130AP (LIRC Jan. 14, 2005).

Although the commission has in certain cases (1)  found a reason beyond control where the appealing party receives two seemingly inconsistent determinations at or around the same time, the underlying rationale for such a result is not present here.

First of all, the determination awarding benefits was issued before the determination denying benefits and should not, as a result, have reasonably led the employee to conclude that it superseded the denial.

In addition, even though the employee refers to confusion in regard to the two determinations, it is apparent that she is referring to confusion on the part of the department, and not confusion on her part. Her correspondence conveys that she was aware that the two determinations, which involved different employers, were distinct; and that she needed to, and intended to, appeal the adverse determination in order to receive benefits, but that she was drawing to the department's attention the incorrect determination number in its correspondence to her.

Moreover, the employee does not offer the existence of the determination awarding benefits as justification for her untimely appeal of the adverse determination. See, Bullocks v. Alexian Village of Milwaukee, UI Hearing No. 02609863MW (LIRC March 18, 2003) (no reason beyond control where employee did not contend that receipt of two determinations at or around the same time was the reason she failed to appeal the adverse one).

Finally, the determination awarding benefits stated a qualification, i.e., it specifically alerted the employee that the actual payment of benefits would depend upon the resolution of another issue. See, Mathe v. Madison Window Cleaning Co., Inc., UI Hearing No. 02007776MD (LIRC April 11, 2003); Andrews v. Flex-Staff Temp. Serv., UI Hearing No. 97400372AP (LIRC July 10, 1997) (reason beyond control for untimely appeal of disqualifying determination when receipt on same day of determination which states without qualification that benefits are allowed); Oonk v. La Macchia Enterprises, Inc., UI Hearing No. 04601033MW (LIRC April 13, 2004).

The employee has failed to offer a reason beyond control, nor is one apparent from the circumstances present here, for her untimely request for hearing.



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Footnotes:

(1)( Back ) See, e.g., Braun v. Stansfield Vending, Inc., UI Hearing No. 03001842MD (LIRC Sept. 17, 2003); Mathe v. Madison Window Cleaning Co., Inc., UI Hearing No. 02007776MD (LIRC April 11, 2003); Andrews v. Flex-Staff Temp. Serv., UI Hearing No. 97400372AP (LIRC July 10, 1997).

 


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