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

LISA M GILSON, Employee

HUMANA INSURANCE CO, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07401823GB


PROCEDURAL HISTORY


On July 21, 2007, a determination was issued finding that as of the calendar week ending July 7, 2007 (week 27), the employee was discharged for misconduct connected with her employment. The "EFFECT" section of the determination explained that due to the misconduct finding:

(1) the base period wages the employee earned with the employer prior to discharge could not be used to compute the maximum benefit amount for this claim of benefits by the employee or any subsequent claim,

(2) the employee was not eligible for benefits from July 1, 2007 through August 25, 2007 and until the employee earned wages equaling at least $4,970.00 in covered employment, and

(3) thereafter, the employee might be eligible for benefits if she had another base period employer from which benefits were payable.

The employee timely appealed, with a confirmation of appeal sent to her on July 31, 2007. On August 15, 2007, prior to the hearing, the Fox Valley Hearing Office received a withdrawal postcard from the employee, indicating that she no longer wanted a hearing and understanding that if she returned the card, "no further proceedings will be scheduled in this matter."

On August 16, 2007, Administrative Law Judge (ALJ) Frigo issued an "APPEAL TRIBUNAL DECISION WITHDRAWAL" (withdrawal), indicating that the employee had withdrawn her request for a hearing. The withdrawal was mailed to the employee's address of record. The front page explained "NOT APPLICABLE" in the "Appeal Must Be Received or Postmarked By" section. The reverse side contained an "APPEAL RIGHTS" section mentioning a 21-day appeal deadline for the "attached decision;" while the following appeared under the "WITHDRAWAL DECISION" section:

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 October 2, 2007, the Fox Valley Hearing Office received a letter from the employee, postmarked October 1, 2007. The letter requested a "reappeal" of her determination. The letter further explained that the employee was "in class the last time that I had a hearing and could not make it." She also explained that she had been working since September 10, 2007 and "that is why I could not make another appointment." She also claimed that another worker for the employer was reinstated.

Because the employee's correspondence was received over 21 days after the issuance of the withdrawal, the correspondence was forwarded to the commission for review.

Since Glasschroeder v. A 1 A Plus, UI Dec. Hearing Nos. 03401009AP and 03401010AP (LIRC March 4, 2004), the commission has held that an "Appeal Tribunal Decision - Withdrawal", as formatted, is an appealable document. (1)

Wis. Stat. § 108.09(6)(a) provides, as follows:

COMMISSION REVIEW. (a) The department or any party may petition the commission for review of an appeal tribunal decision, pursuant to commission rules, if such petition 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. The commission shall dismiss any petition if 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. If the petition is not dismissed the commission may take action under par. (d). [(2)]

Further, while the commission has consistently held that the withdrawals as currently formatted, constitute a reason beyond control for a late appeal, the department has not altered the format of such decisions. Id.

Thus, the employee's petition requesting retraction of his withdrawal was late for reason deemed to be beyond the petitioner's control and the issue before the commission is whether the employee should be allowed to retract his withdrawal.

Glasschroeder defined the scope of the commission's review in such matters to be limited to: (1) whether there was a withdrawal, (2) if so, whether there was a request to retract the withdrawal meeting the requirements of Wis. Admin. Code § DWD 140.05, and (3) if so, whether there was "good cause" for the retraction request.

The employee's retraction request was not received within the 21-day deadline set forth in of Wis. Admin. Code § DWD 140.05(2). The commission has generally denied granting retraction requests received after the 21-day deadline, where the determination was clear in its explanation of effect. (3)   Such is the case in this matter; the determination was clear in its explanation of the effect upon the claimant's benefit situation. Additionally, the employee did not claim any good faith misunderstanding; instead, it appears that she decided to withdraw to attend a class. For these reasons, the commission declines to grant the employee's retraction request as it was not timely, the determination was clear as to its effect on her benefit claim and the retraction request itself fails to establish good cause.

The commission therefore finds that the employee's petition was filed late but that it was late for a reason beyond the employee's control, within the meaning of Wis. Stat. § 108.09(6)(a).

The commission further finds that the employee's request for hearing was withdrawn, within the meaning of Wis. Stat. § 108.09(4)(a), and that the employee did not file a request to retract her withdrawal that met the requirements of Wis. Admin. Code § DWD 140.05(2).

DECISION

The withdrawal decision of the administrative law judge is affirmed. Accordingly, the request for hearing will not be reinstated and the August 16, 2007 withdrawal decision shall remain in effect.

Dated and mailed October 26, 2007
gilsoli . upr : 150 : 1 PC 718  PC 749

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner



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Footnotes:

(1)( Back ) See Taylor v. Pioneer Metal Finishing Corp., UI Dec. Hearing No. 07400980GB (LIRC July 23, 2007); Young v. Milwaukee Public School and Food Team Suite 730, UI Dec. Hearing Nos. 4611502MW, 04611503MW, 04611504MW 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); Behnke v. Royal Pets Inc., UI Dec. Hearing No. 04005276MD (LIRC October 31, 2006), Lettie v. Birchwood Lodge Rental Services Inc., UI Dec. Hearing No. 06402814AP (LIRC February 8, 2007), Luckett v. Independence First Inc., UI Dec. Hearing No. 06004487MD (LIRC February 8, 2007) and Steffes Construction, UI Contribution Liability Dec. Hearing Nos. S0400078MD and S0400163MD (LIRC February 12, 2007).

(2)( Back ) Wis. Stat. §108.09(6)(d) provides that once the commission has jurisdiction of a matter, it: may affirm, reverse, modify or set aside the decision on the basis of the evidence previously submitted, may order the taking of additional evidence as to such matters as it may direct, or it may remand the matter to the department for further proceedings.

(3)( Back ) See Taylor, Young, Wambold and Brewer.

 


uploaded 2007/10/29