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

IRIS J MANN, Employee

RES CARE WISCONSIN INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 09000273MD


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 first issue for decision is whether the employee's appeal was late for a reason beyond her control.

Wisconsin Statute § 108.09(2r) requires an appeal to be filed (i.e. postmarked or received) within 14 days after a copy of the determination was mailed or given to such party, whichever first occurs.

On December 17, 2008, the department mailed the determination to the employee at her last known address. The last day for a timely appeal was stated in the decision as January 2, 2009. The employee admitted receiving the determination and in her appeal letter stated that she had not noticed the January 2, 2009, deadline and had been trying to appeal since December 18, 2008, but that she could never get through [by telephone] to a claims specialist.

The initial determination states, in relevant part:

This determination resolves an unemployment eligibility issue. If you have questions about this determination or problems filing weekly claims, CONTACT A CLAIMS SPECIALIST at:

The initial determination goes on to set forth local and 800 numbers that a party can call to contact a claims specialist.

The employee followed the directive on the initial determination. She was unable to get through to a claims specialist.

The commission therefore finds that the employee's failure to file a timely request for hearing was for a reason beyond her control within the meaning of Wis. Stat. § 108.09(4)(c) and ch. DWD 140.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee's request for hearing on the merits is granted. This matter is remanded to the hearing office for a hearing and decision on the merits of the case.

Dated and mailed April 6, 2009
manniri . urr : 132 : 1 : PC 711

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

Ann L. Crump, Commissioner

MEMORANDUM OPINION

The commission did not consult with the ALJ who presided at the hearing regarding witness credibility and demeanor. The commission's reversal is not based on credibly. The ALJ stated in his decision that the determination contained no direction to contact a claims specialist by telephone. The commission disagrees.


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uploaded 2009/05/04