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


JAMES L CHRISTENSEN, Claimant

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98402256AP


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 the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

On July 15, 1998, an initial determination adverse to the claimant was sent to his address of record. The initial determination had an appeal deadline of July 29, 1998. Because of some construction going on around the claimant's residence, he did not receive the determination until August 10. At that time, it was unreadable except for the fact that it was from the Unemployment Insurance Division. The claimant's wife contacted the division using an 800 number and requested a duplicate determination. A duplicate determination was received on August 20. At that time the claimant prepared an appeal letter. The claimant's wife mailed it that same day, but used an uncancelled stamp affixing it to the envelope by cutting around the stamp and taping over the stamp. The post office returned the letter indicating "Stamp void if coated, covered, defaced or reused. Return to sender." The claimant's wife remailed the appeal which had a cancellation date of September 1 and was received by the Fox Valley Hearing Office on September 2.

The issue to be decided is whether the claimant's appeal was late, and if so, if it was late for a reason beyond his control.

The ALJ found that the claimant could not control the fact that he received the initial determination late in an unreadable condition. The commission agrees with such finding. The ALJ found that the second relevant time period was after the duplicate determination was received on August 20. The ALJ found that appeal letter was postmarked 12 full days later than it would have been had proper postage been affixed. It is in this period that the ALJ found that the reason for the claimant's late appeal was the result of his own negligence.

The commission agrees that the claimant's appeal, after receiving the August 20 decision was filed later than it would have been filed had proper postage been affixed. However, the appeal was still postmarked within 14 days after the claimant received the determination on August 20. Under Wis. Stat. § 140.01(2), if a party first receives a determination after the last day for appealing, the party receives another 14 days to file an appeal. While technically the claimant did receive the determination on August 10, given the fact that it was unreadable it is the same as not receiving a determination at all. The commission believes it is only fair to start the 14-day appeal period from August 20, 1998, the date that the claimant first received a readable determination. Starting on August 20, therefore, the claimant had until September 3 to file a timely appeal. The claimant met that deadline. Accordingly, the commission reverses the appeal tribunal decision. Such reversal is not based on a differing impression of witness credibility, but because the commission has reached a different legal conclusion when applying the law to the facts.

The commission therefore finds that the claimant's request for hearing was timely 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 claimant's request for hearing is not dismissed. The commission remands this matter back to the hearing office for a hearing and decision on the merits of the claimant's appeal.

Dated and mailed: November 23, 1998
chrisja.urr : 132 : 7  PC 711

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


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