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

CHRISTOPHER J ANDERSON, Employee

WOODMANS FOOD MARKET INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 08605269MW


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 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

On July 22, 2008, the department issued an amended determination and mailed a copy to the employee. The determination notified the employee that the decision was final unless a written appeal was received or postmarked by August 5, 2008. The determination also instructed the employee to contact a claims specialist if he had any questions about the determination and provided phone numbers for claims specialists. The determination also notified the employee that he has the right to file an appeal if he disagrees with the determination and provided specific instructions about how to file an appeal. The employee received the determination before August 4, 2008. The department received the employee's request for hearing via fax on August 8, 2008.

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

Upon receiving the determination, the employee recognized the appeal deadline of August 5, 2008, and he called the department deputy who issued the determination and left messages for him. The employee called the department deputy because he had questions about the determination and about what he should do next. However, the employee did not call the phone numbers for claims specialist provided in the determination. The employee planned on filing a timely appeal, but he was incarcerated from August 4 through August 7, 2008. The employee faxed his appeal to the department upon his release from custody.

The employee may have been able to file his appeal earlier if he had attempted to contact an adjudicator to have his questions answered. However, the employee was entitled to wait until the last day to appeal. The employee would have been able to timely appeal but for his unforeseen incarceration. The employee testified that he was released after the allegations that led to his incarceration were proven false. The employee was not at fault in his incarceration. He was unable to file his appeal timely due to that incarceration.

The commission therefore finds that the employee filed a late request for hearing for a reason beyond his control within the meaning of Wis. Stat. § 108.09(4)(c) and Wis. Admin. Code ch. DWD 140.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee's request for hearing on the merits is not dismissed. A hearing on the merits will be scheduled as soon as possible.

Dated and mailed November 12, 2008
anderch . urr : 132 : 1 :  PC 711

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

 

NOTE: The commission did not consult with the ALJ who presided at the hearing regarding witness credibility. The commission has not reversed the ALJ based on credibility but because it reaches a different legal conclusion based on the evidence presented.

 


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uploaded 2008/11/17