BEFORE THE
STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

In the matter of the
unemployment benefit claim of

RENEE A. VOLGREN, Employee

Involving the account of

BELLANCA AIRCRAFT CORP., Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 80-20512 EE


The employe filed a timely petition for commission review of an appeal tribunal decision of the Department of Industry, Labor and Human Relations which dismissed her request for hearing (appeal) as not timely. On May 14, 1980, the Commission ordered that testimony be taken with respect to the timeliness of the employe's request for hearing and with respect to the merits of the case. Such testimony was taken at a hearing on June 10, 1980.

Based on the evidence, records and law applicable to this matter, the Commission makes the following

FINDINGS OF FACT AND CONCLUSIONS OF LAW

On March 12, 1980, an initial determination of a deputy of the Department of Industry, Labor and Human Relations was issued to the last-known address of the parties denying benefits to the employe. Under section 108.09 (2r) of the statutes, the last date on which a timely request for hearing (appeal) could have been made was March 26, 1980. In accordance with section Ind-UC 140.07 of the Wisconsin Administrative Code, such initial determination specifically informed the parties that it would become final unless a written appeal therefrom was received by the Department by March 26, 1980. Department records indicate that the employe's request for hearing dated March 26, 1980, was postmarked March 27, 1980, and was filed (i.e., received) on March 28, 1980, two days late, at the Eau Claire Job Service Office.

Section 108.09 (3)(f) of the statutes provides:

"The appeal tribunal shall dismiss any request for hearing which has not been timely filed unless the party filing such request shows probable good cause that the reason for having failed to file the request timely was beyond the control of such party.'

On March 4, 1980, the employe's statement was taken with respect to the employer's contention that she had quit her employment. The employe failed to file the request for hearing timely because she was in Sweden with her husband from March 8, 1980 until she returned home on Mach 26, 1980, the final appeal date. She did not become aware of the initial determination until she opened her mail at about 1:00 p.m. on that date, whereupon she telephoned and informed a representative of the Eau Claire Job Service Office that she desired to appeal the initial determination. She explained the circumstances and stated that her appeal "would be late," and she was informed that she could mail her appeal in and that she could explain the reason for the untimeliness of her appeal to a job service office representative at Rice Lake on March 31, 1980. She mailed her appeal to the Eau Claire Job Service Office on March 27, 1980, and personally appeared at the Rice Lake Job Service Office on March 31, 1980, to explain why her appeal Was late.

In Judith Ross v. DILHR & County of Manitowoc, Dane County Circuit Court Case No. 79-CV-2694, a case in which a late appeal was filed because both an attorney and his client each mistakenly thought the other had filed the appeal, the Honorable Judge George R. Currie stated that:

"To constitute good cause beyond the control of the party requires not only good cause, but factors which are beyond the control of the party. An example might be failure of the United States Postal Service to deliver the initial determination to a party where the proper address is given. Another might be incapacitating illness of either the employee or her attorney who had been entrusted with filing the request for hearing. Here there was no explanation offered that an event beyond the control of either the employee or her attorney had occurred which prevented the timely filing of the request for hearing."

In the instant case, the employe filed a late appeal essentially because she was not home during almost the entirety of her appeal period and, when she did return home, assuming she had time to do so, she did not immediately file a written appeal at a job service office. Although she had arranged for the safekeeping of her mail, she did not arrange either for the issuance of the initial determination to be deferred until she returned from Europe or for someone to open her mail and respond thereto, if necessary, during her absence.

Under these circumstances, it is the judgment of the Commission that the employe's request for hearing was not timely, within the meaning of section 108.09(2r) of the statutes and that the employe did not show that her failure to file a timely request for hearing was beyond her control, within the meaning of section 108.09(3)(f) of the statutes.

DECISION

The appeal tribunal decision is amended to conform hereto and, as so amended, is affirmed. Accordingly, the employe's request for hearing is dismissed.

Dated and mailed July 16, 1980
110 - 220  PC 711

/s/ Virginia B. Hart, Chairman

/s/ John R. Hayon, Commissioner

LaVerne G. Ausman, Commissioner


[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]


uploaded 2008/07/22