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

KEVIN D ZASTROW, Employee

TERRY'S EXCAVATING INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07003180MD


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 department determination finding that the employee had quit with no qualifying exception was dated and mailed to the employee's Watertown address on July 5, and stated an appeal deadline of July 19, 2007.

The employee's appeal was postmarked on July 24 and received by the department on July 25, 2007.

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).

The employee concedes (hearing exhibit #3) that he received the determination on July 18, the day before the appeal deadline. It was certainly within the employee's control to read the determination at that time and to note the appeal deadline. Moreover, the employee, who has the burden of proof, failed to establish that it was beyond his control to craft, and to post or otherwise transmit, his letter of appeal that day or the next.

The employee has failed to sustain his burden to prove that he had a reason beyond his control for his untimely appeal of the department determination.

DECISION

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

Dated and mailed October 18, 2007
zastrke . urr : 115 : 1   PC 711

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

 



JAMES T. FLYNN, Chairperson (dissenting):

I respectfully dissent from the majority decision.

In my opinion, basic considerations of due process require that a party have more than one day to craft and post, or otherwise transmit, an appeal of a department determination.

/s/ James T. Flynn, Chairperson

 


 

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uploaded 2007/10/22