LA NEICE C ELLIS, Employee

HO CHUNK NATION, Employer

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:

The department issued an initial determination in the above-referenced matter on February 7, 2009. The last day to file a timely appeal was February 23, 2009. The employee's appeal was filed on March 23, 2009. It was filed on the employee's behalf by her son.

The employee suffered a stroke in July of 2008 that left her with a diminished mental capacity and impaired her ability to read and comprehend legal documents. Although the employee received the appeal tribunal decision, she was not able to fully understand it or to act upon what she had read. When the employee's son learned that a determination had been issued he went to the employee's home and located the document in a stack of papers. However, at that point the deadline for filing a timely appeal had already elapsed.

By operation of Wis. Stat. § § 108.09(2r) and 108.09(4)(c), a late request for hearing must be dismissed unless it was late for a reason beyond the party's control. Here, the employee's diminished mental capacity rendered it beyond her control to file a timely hearing request.

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).

The decision of the administrative law judge is reversed. Accordingly, this matter is remanded for a hearing and decision on the merits.

Dated and mailed July 15, 2009
ellisla . urr : 164 : 9  PC 711

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

NOTE: The commission did not confer with the administrative law judge about credibility prior to reversing. The commission's reversal is not the result of a differing assessment of witness credibility. At the hearing the employee's son attempted to present documents regarding his mother's abilities after her stroke, but the administrative law judge indicated he would take the employee's son's word for that and did not need the documents. The administrative law judge credited the witnesses' testimony about the employee's mental capabilities, but nonetheless considered her failure to file a timely appeal to be a matter of excusable neglect. He further concluded that the employee should have made arrangements for dealing with matters mailed to her. The commission believes, however, that the employee's diminished mental capacity and decreased comprehension related to having suffered a stroke impaired her ability to file a timely appeal, and that the same circumstances that prevented the employee from filing a timely appeal also prevented her from making arrangements to have someone else do it for her.

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uploaded 2009/07/30