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

JIMMIE R MOORE JR, Employee

TIME TRANSPORT INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 08605615MW


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 initial determination found that the employee was discharged for misconduct connected with his work for the employer. The stated effect of the determination was that no benefits were payable until the employee requalified for benefits. The determination further stated that it would become final unless an appeal was received or postmarked by August 22, 2008. The employee wrote his letter of appeal during the afternoon of August 22 and faxed it to the hearing office on August 25, 2008.

The employee received a second determination on August 9, 2008, that found the employee was discharged from another employment unit and not for misconduct connected with his work. The stated effect of the determination was that "BENEFITS ARE ALLOWED." The appeal deadline for that determination was August 25, 2008.

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

The employee delayed in filing his appeal because he believed the two determinations were tied together and that the overall effect of the two determinations was that he would be allowed benefits.
The first determination the employee received stated that benefits were denied. The second determination stated, without qualification, that benefits were allowed. The commission addressed this situation in Fox v. Cable Corner Bar, UI Dec. Hearing No. 01201708EC (LIRC Jan. 30, 2002):

At least since 1988, the commission has held in this kind of case that the subsequent statement from the department to the effect that benefits are allowed outright, supercedes a prior document indicating that benefits are denied, and is a reason beyond control for a failure to have timely appealed the prior, adverse document. See Hunter v. Fleet Mortgage Corp., UI Dec. Hearing No. 88-605520 MW (LIRC December 9, 1988); Zyla v. Stock Lumber, Inc., UI Dec. Hearing No. 96601492MW (LIRC May 23, 1996); Andrews v. Flex-Staff Temp. Serv., UI Dec. Hearing No. 97400372AP (LIRC July 30, 1997); and Erspamer v. ADECCO Employment Services, Inc., UI Dec. Hearing No. 99400574GB (LIRC July 7, 1999).

The commission therefore finds that the employee's failure to file a timely request for hearing was for a reason beyond his control, within the meaning of Wis. Stat. § 108.09(4).

DECISION

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

Dated and mailed November 12, 2008
mooreji . 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's reversal is not based on reaching a different credibility assessment than that reached by the ALJ.

 


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