Wis.LIRC UC Decision: Connolly, Nicholas - January 29, 2010 - PC 711 - Hearing, Late request for Hearing - Appeal not late for a reason beyond control, where claimant left message for adjudicator prior to issuance of determination, adjudicator did not return call but issued determination and employee decided not to appeal because he had an appeal hearing pending and assumed he could question the ALJ about the matter and apparently believed that the matter could be handled informally.

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

NICHOLAS A CONNOLLY, Claimant

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 09611705MW

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 claimant's appeal is dismissed. The initial determination remains in effect.

Dated and mailed January 29, 2010
connoni . usd : 145 : 6 PC 711

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The claimant has petitioned for commission review of the adverse appeal tribunal decision. The claimant wished to discuss this matter with the adjudicator after he received a questionnaire from her, and called leaving a message requesting that she contact him. The adjudicator did not return his call, rather he then received an initial determination. The initial determination stated that his appeal had to be received on or before October 16. The claimant had a hearing on a different matter and assumed that he could question the ALJ at the hearing about this matter, so he did not file an appeal. However, he subsequently learned that his hearing in the other matter would be delayed, yet he failed to file an appeal in this case, apparently because he believed he could have the matter straightened out informally at his hearing. While it is unfortunate that the adjudicator did not return his call, it may be that she never received the message or believed that the matter was concluded when she issued the initial determination. The claimant did not attempt to contact the department again about this particular matter. Further, the claimant was aware of the appeal deadline, he simply chose to ignore it because he believed he could handle the matter another way. However, that was his choice and he has not established that it was beyond his control to file a timely appeal. Finally, the commission notes that the initial determination states that he is ineligible until he provides the department with sufficient information to determine how his employment ended. The claimant could still contact the department to see whether he can supply the information that the department lacks.

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uploaded 2010/02/10