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

LAUREN N GRANIELA, Employee

CAPTEL INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 09611239MW


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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee's request for hearing is dismissed, and the department determination remains in effect.

Dated and mailed January 13, 2010
granila . usd : 115 : 5 PC 711

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION


A department determination finding that the employee had been discharged for misconduct, and denying benefits as a result, was dated and mailed on October 20, 2009, and stated on its face that it would become final unless a written appeal was postmarked or received by November 12, 2009.

The employee's appeal was filed on November 19, 2009.

The standard for excusing a failure to timely appeal a department determination is "reason beyond control." This is a very rigorous standard, and only extraordinary reasons have been found by the commission to satisfy it. See, Jerome Kosmoski, UI Hearing No. S9900245MW (LIRC March 22, 2000). It was certainly within the employee's control to read the determination when she received it and to note the appeal deadline. See, Thelen v. Toms Quality Millwork, Inc, UI Hearing No. 99003677MD (LIRC Dec. 22, 1999).

The employee first explains as follows:

Lack of information and understanding the reason for the denial determination. Had to call and leave messages for a week trying to contact the adjudicator 1424. She left two messages. I somewhat understood the last message, but never was able to speak with her personally on the telephone.

First, the determination instructed the parties in prominent language on the reverse side to contact a claims specialist with questions. The employee, however, attempted to contact the adjudicator with her questions. In addition, the determination clearly explained that it would become final unless an appeal were filed before the November 12 deadline, and it was within the employee's control, if the deadline were approaching, to craft and file a request for hearing to preserve her appeal rights. It is not apparent, or reasonably inferred, from the explanation provided by the employee that she would have been unable to craft and file an appeal without the information she was seeking from the adjudicator. See, e.g., Trego v. Seagull Aviation Parts Inc., UI Hearing No. 02403884AP (LIRC March 7, 2003).

The employee also explains that, once she decided to file her appeal, she attempted to do so online beginning on November 15 but the department website was down for several days. However, this would not have affected her ability to file her appeal on or before November 12, the appeal deadline.

The employee has failed to offer a reason beyond her control for her untimely appeal of the department determination.



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