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

MARGARET L FRANK, Employee

BREAD & WATER LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 09002676MD


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 involved in this case was mailed on January 3, 2009. The last day for postmarking and/or filing a timely appeal was January 20, 2009. On January 24, 2009, the employer/appellant's appeal was postmarked.

Wis. Stat. § 108.09(2r) and (4)(c) provide, in part, as follows:

"(2r) HEARING REQUEST.
Any party to a determination may request a hearing as to any matter in that determination if such request is made in accordance with procedure prescribed by the department and is received by the department or postmarked within 14 days after a copy of the determination was mailed or given to such party, whichever first occurs.
(4) APPEALS.
(c) Late appeal. If a party files an appeal which is not timely, the department may schedule a hearing concerning the issue of whether the party's failure to timely file the appeal was for a reason beyond the party's control. . . If, after hearing testimony, the appeal tribunal finds that the party's failure to timely file an appeal was not for a reason beyond the party's control, the appeal tribunal shall issue a decision containing this finding and dismissing the appeal. . ."

The issue to be decided is whether the employer failed to file a timely appeal and if so, whether this was for a reason beyond the employer's control.

The employer received the initial determination on or about January 6 or 7, 2009. She read the front but did not read the back carefully. She knew there was a deadline to filing an appeal. The employer spoke to an adjudicator and informed the adjudicator that she disagreed with the initial determination. The adjudicator told her to put this information in an email to her. The adjudicator's comments led the employer to believe that the adjudicator was going to reconsider the decision after she received the information. The adjudicator did not ask the employer if the employer would like the email to constitute an appeal if the additional information did not change the outcome of the case. The employer then sent an email to the adjudicator on January 5, 2009. The email did not mention the appeal issue. The employer then contacted the adjudicator the day after the appeal deadline asking for an update. The adjudicator responded to the January 21, 2009, email the next day and asked the employer if she wanted the determination to stand or not. The adjudicator mentioned that she would have to discuss this matter with the employee and obtain additional information. On January 22, 2009, the employer responded with another email indicating she had spoken to a DWD employee named "Darlene" in Milwaukee and had decided to appeal.

The employer argued that she filed her appeal late for reasons beyond her control. The commission agrees.

The adjudicator in this case clearly led the employer to believe that she was going to issue a redetermination. Given this was the case the employer would not have thought to file an appeal. In fact, had she done so, the adjudicator would not have been able to issue a redetermination, at least unless the employer would withdraw her appeal.

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

DECISION

The decision of the administrative law judge is reversed. Accordingly, this matter is remanded to the department for a hearing and decision on the issue of whether the employee is eligible for benefits based on her separation from the employer.

Dated and mailed September 18, 2009
frankma . urr : 145 : 5 PC 711

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner


MEMORANDUM OPINION

The commission did not discuss witness credibility and demeanor with the ALJ. The commission did not reverse based on a different assessment of witness credibility but rather, reached a different conclusion when it applied the law to the facts found by the ALJ.



 

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uploaded 2009/10/23