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

TAMMY J WEYENBERG, Employee

THEDACARE GROUP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07402243GB


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 department mailed the determination in this matter on August 28, 2007. The last day for filing a timely request for a hearing was September 11, 2007. The employee's appeal was filed on September 20, 2007.

The issue to be decided is whether the employee's failure to file a timely request for hearing was for a reason beyond that party's control.

On August 29, 2007, the employee entered the hospital to have surgery. She remained hospitalized until September 1, 2007. She then returned to her residence to recover from her surgery. On September 7, 2007, she reentered the hospital because she was experiencing complications from her surgery. She was in the hospital until September 11, 2007.

The employee's testimony established that she was basically incapacitated during the appeal period and understandably distracted by her medical condition, treatment and pain.

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 decision of the administrative law judge is reversed. Accordingly, the employee's request for a hearing on the merits is not dismissed. This matter is remanded to the hearing office for a hearing and decision on the merits.

The commission further remands to the department the issues of whether the employee was able to work and available for work, and whether the employee conducted a work search, during the weeks she filed for benefits and, if not, whether the employee concealed her inability to or unavailability for work and/or failure to conduct a work search, from the department, unless otherwise resolved.

Dated and mailed November 30, 2007
weyenta . urr : 132 : 1 PC 711  PC 733

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The commission did not consult with the ALJ who presided at the hearing regarding his impressions of witness credibility and demeanor. The employee appeared by telephone. The commission listened to the digital recording of the hearing as part of its review.

The employee testified at the hearing that during the appeal period she was in the hospital, at the doctor's office, or on her bed or couch. Department records reflect that the employee filed for, but did not receive, benefits beginning in week 31 of 2007, the calendar week ending July 4, though week 44 of 2007, the calendar week ending November 3. The employee thus filed for benefits for weeks that she testified she was in the hospital or otherwise incapacitated due to her medical condition and treatment.


 

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uploaded 2007/12/07