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

CATHERINE TABOR HANSEN, Employee

FRANCISCAN SKEMP MEDICAL CENTER INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07003735MD


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

The employee was the subject of an adverse initial determination issued by the Department of Workforce Development on August 9, 2007. The deadline for a timely request for hearing on the determination was August 23, 2007; the employee filed her request for hearing on August 29, and the issue in the case is whether it was late for a reason beyond her control, within the meaning of Wis. Stat. § 108.09(4). The commission concludes that it was, and so reverses the appeal tribunal decision.

During the pendency of the appeal period, the employee was suffering from gestational diabetes and required significant medical oversight for complications related to her pregnancy. She had doctor's appointments on Mondays, Wednesdays, and Thursdays. The employee also had a 15-year-old son who both has behavior issues and was undergoing physical therapy following ACL surgery. On the morning of the appeal deadline, August 23, the employee went into labor and, later that day, delivered her baby.

Wisconsin Stat. § 108.09(4) allows a late request for hearing only if the request was late for a reason beyond the appellant's control. A medical matter occurring at the end of an appeal period, however, constitutes such a reason beyond control. See McCloud, Jr. v. Badger Meter, Inc., UI Dec. Hearing No. 99606530MW (LIRC May 10, 2000) (the appellant's essentially paralyzing anxiety attack the day before the end of the appeal period, was a reason beyond control for the appellant's late request for hearing). A party has the right to wait until the end of an appeal period to file his or her appeal and if an emergency arises at that point that is beyond the party's control, then the resulting late appeal is so for a reason beyond the party's control. The employee's going into labor is such a reason.

The commission therefore finds that the employee has established that her failure to file a timely request for hearing was for a reason beyond her control, within the meaning of Wis. Stat. § 108.09(4) and Wis. Admin. Code ch. DWD 140.

DECISION

The appeal tribunal decision is reversed. Accordingly, this matter is remanded to the Department of Workforce Development for hearing and decision on the merits.

Dated and mailed November 19, 2007
hanseca . urr : 105 : 1 PC 711

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

 

NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision. The commission's reversal is not based upon a differing credibility assessment from that made by the administrative law judge. Rather, it is as a matter of law.

 

cc: Attorney Harry R. Griswold


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uploaded 2007/11/28