RICHARD A FOURTE, Employee

SIGNICAST CORP, Employer

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 employee, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission makes the following:

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

The department's initial determination in this matter was dated and mailed by the department on July 25, 2007. The last day for filing a timely appeal was August 8, 2007. The department received a copy of an appeal to the determination that was postmarked January 29, 2008 on January 30, 2008.

The employee received the initial determination a few days after it was issued and read it carefully. Department records reflect that on the same day, the department issued another initial determination that was also adverse to the employee. Department records reflect that the employee informed that adjudicator, in the other case, that if the determination was adverse to him he wished to have his statement treated as his appeal of the adverse determination and in fact the department treated his statement as an appeal. The employee testified at the hearing in this matter that he believed he had appealed this decision in a timely manner. The employee explained that after a hearing in the other matter, that reversed the initial determination and allowed benefits, he discovered that the department had not considered his statement to the adjudicator to be an appeal of this case.

If two decisions were issued on the same day and were both adverse to a party the commission's normal practice would be to consider a general appeal as an appeal to both of those determinations. There is nothing in the file in this case to reflect that the employee did not in fact inform the adjudicator that he wished to appeal this or both initial determinations if they were unfavorable. The commission considers the employee's January 30, 2008, appeal to be a reaffirmation of the fact that he filed a timely appeal initially.

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

The decision of the administrative law judge is reversed. Accordingly, the matter is remanded for a hearing on the merits.

Dated and mailed May 22, 2008
fourtri . urr : 145 : 2 PC 711

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

The commission did not discuss witness credibility and demeanor with the ALJ who held the hearing, but reverses her decision as a matter of law.

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uploaded 2008/06/20