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

TRICIA A HOYER, Employee

LES STUMPF FORD, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 09402046AP


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 department issued an initial determination in this matter which was dated and mailed on April 24, 2009. The last day for filing a timely appeal was May 8, 2009. The appeal was postmarked on June 4, 2009, and received by the department on June 5, 2009.

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

The employee argued that her failure to file a timely appeal was due to a reason beyond her control. The commission agrees. She explained that the employer delayed or declined to provide her with the documentation she needed to prove her case and that she was awaiting the receipt of that information before she filed the appeal. She also asserted that she did not know how to file an appeal and that her copy of the determination with the instructions regarding how to file an appeal did not have printing on the reverse side. The employee repeatedly called the department for assistance in filing the appeal but was unable to get through.

The employee in this case was waiting for the employer to provide her with her employment records. However, parties are expected to file a timely appeal while attempting to obtain the materials necessary to present their case. Further, the ALJ who held the hearing did not find the employee's testimony, that her initial determination was missing the back page, to be particularly credible. The commission will not disturb the ALJ's credibility determination in this regard. However, parties frequently indicate that they have appealed late because they did not understand the appeal process. The commission has consistently held that claimants who do not understand the process should contact the department for clarification or for assistance in filing an appeal. In this case, the employee's undisputed testimony was that was that she repeatedly attempted to contact the department to discuss filing her appeal but was unable to get through. It was not within the employee's control that she did not know how to go about appealing given the particular circumstances in her case, and was unable, through no fault of her own, to obtain assistance in filing her appeal from the department.

The commission therefore finds that the employee filed a late request for hearing for a reason beyond her 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 October 23, 2009
hoyertr.urr:145:6 PC 711  

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

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. The employee's testimony that she repeatedly called the department to request assistance but was unable to get through was undisputed.


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uploaded 2009/12/14