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

JEROME H HEIDER, Employe

BASIC AMERICAN METAL PRODUCTS, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 97005806MD

On November 20, 1997 the Department of Workforce Development issued an initial determination which held that the employe was discharged for misconduct connected with his employment. As a result, benefits were denied. The employe filed a hearing request, which was dismissed after hearing by an appeal tribunal on the ground that it was late, and not due to any reason beyond the employe's control. The employe has petitioned for commission review of the appeal tribunal's dismissal of the late hearing request.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the administrative law judge. Based on the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Timeliness of Petition

Wisconsin Statute § 108.09(6)(a), requires that a petition for review be received by the department or commission or postmarked within 21 days after a copy of the appeal tribunal decision was mailed to a party. The appeal tribunal decision dismissing the employe's hearing request was issued on January 7, 1998. The employe's petition for review was postmarked May 27, 1998 and received by the department on May 28, 1998. Consequently, the petition is untimely.

The commission must dismiss an untimely petition unless the party filing the petition shows probable good cause that the petition was late for a reason beyond the party's control. Wis. Stat. § 108.09(6)(a). The employe explained that his petition was late because, although he received the appeal tribunal decision, he was unable to understand it due to a cognitive deficit caused by a frontal lobe brain tumor. Based upon this explanation, the commission remanded the matter in order to give the employe an opportunity to present evidence establishing that his petition was late due to reasons beyond his control.

At the remand hearing the employe testified that in April of 1998 he was diagnosed with a brain tumor, which has since been removed. The employe stated that, although he was not aware of it, the tumor was causing him to suffer memory loss and was impairing his judgment. He testified that he does not remember the initial determination, does not recall participating in a hearing with the administrative law judge, and does not remember having seen the appeal tribunal decision.

On a certified medical report prepared by the employe's current physician, the physician indicated that he first saw the employe in June of 1998 and that the employe had symptoms from his brain tumor dating back approximately a year prior to the actual diagnosis. The employe's physician opined that the presence of the brain tumor impaired the employe's decision-making ability and judgment and that the employe would not have been able to understand a legal decision and respond in a timely manner. Based upon these facts and circumstances, the commission concludes that the employe's petition was late for a reason beyond his control.

The commission, therefore, finds that the employe failed to file a timely petition for commission review, but that such failure was for a reason beyond his control, within the meaning of Wis. Stat. § 108.09(6)(a). Accordingly, the commission will proceed to review the appeal tribunal decision.

Timeliness of Hearing Request

Wisconsin Statute § 108.09(2r), requires that a hearing request be received by the department or postmarked within 14 days after a copy of the initial determination was mailed to a party. The initial determination was issued on November 20, 1997. The last day to file a timely hearing request was December 4, 1997. The employe's hearing request was postmarked December 8, 1997 and received by the department on December 10, 1997. Consequently, the hearing request is untimely.

An untimely hearing request will be dismissed unless the party filing the request shows probable good cause that the reason for having failed to file the request timely was beyond the party's control. Wis. Stat. § 108.09(4)(c).

At a January 7 hearing concerning the employe's untimely appeal, the employe provided a number of explanations for the lateness of his hearing request, including an assertion that he felt he would get a new job soon. Based upon those explanations, the administrative law judge concluded that the hearing request was not late due to any reason beyond the employe's control. However, subsequent to the hearing on the timeliness issue it was discovered that the employe was suffering from a brain tumor which impaired his ability to make decisions and exercise judgment. His doctor opined that the employe would not have been able to understand and respond to a legal decision in a timely manner and, in fact, the employe indicated that he could not remember having received the initial determination and did not recall the hearing before the administrative law judge.

Under these circumstances, the commission concludes that the late hearing request, like the late petition, was due to a matter beyond the employe's control.

The commission therefore finds that the employe failed to file a timely hearing request, but that his failure to do so was for a reason beyond his control, within the meaning of Wis. Stat. § 108.09(4) and Wis. Admin. Code ch. DWD 140.

DECISION

The employe's petition for commission review is accepted. The appeal tribunal decision is reversed. Accordingly, the employe's request for hearing on the merits is not dismissed. This matter is remanded to the hearing office for a hearing and decision on the merits of the case.

Dated and mailed: December 29, 1998
document3 : 164 : 1  PC 711 PC 731

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

NOTE: The commission did not confer with the administrative law judge regarding witness credibility and demeanor. The commission's reversal of the appeal tribunal decision is not based upon a differing assessment of witness credibility. Rather, the commission reverses on the basis of additional evidence regarding the employe's medical condition that was not before the appeal tribunal at the original hearing.

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