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

SANDRA M SANTNER, Employee

D/B/A CHERRY HILLS LODGE & GOLF, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 09402999AP


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

On June 20, 2009, the department's determination in this matter was dated and mailed to the employee at her address of record: 410 N 14th Place, Sturgeon Bay, WI 54235-1354. This was the correct mailing address. The employee did not receive a copy of this determination when it was first mailed.

The determination indicated on its face that it would be final unless a written appeal was received or postmarked by July 6, 2009. That deadline had already passed when the employee called a claims specialist and asked why she was not receiving benefits. The claims specialist informed her about the adverse determination, and mailed her a copy of that determination. The claims specialist informed the employee that she had 30 days from the date of mailing to appeal the decision. The employee received this copy a few days after it was mailed.

On August 16, the employee typed an appeal letter. She mailed the letter to the hearing office in an envelope postmarked August 17, 2009 (25 days after the duplicate determination was received on July 23).

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

Wis. Stat. § 108.09(2r) and (4)(c) provides, 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.

(c) Late appeal. If a party files an appeal which is not timely, an appeal tribunal shall review the appellant's written reasons for filing the late appeal. If those reasons, when taken as true and construed most favorably to the appellant, do not constitute a reason beyond the appellant's control, the appeal tribunal may dismiss the appeal without a hearing and issue a decision accordingly. Otherwise, the department may schedule a hearing concerning the question of whether the appeal was filed late for a reason that was beyond the appellant's control. The department may also provisionally schedule a hearing concerning any matter in the determination being appealed. After hearing testimony on the late appeal question, the appeal tribunal shall issue a decision which makes ultimate findings of fact and conclusions of law concerning whether the appellant's appeal was filed late for a reason that was beyond the appellant's control and which, in accordance with those findings and conclusions, either dismisses the appeal or determines that the appeal was filed late for a reason that was beyond the appellant's control. If the appeal is not dismissed, the same or another appeal tribunal established by the department for this purpose, after conducting a hearing, shall then issue a decision under sub. (3)(b) concerning any matter in the determination.

Wis. Admin. Code § DWD 140.01(2)(a) provides:

(2) TIME LIMIT FOR FILING. (a) An appeal shall be filed after a copy of the determination is mailed or given to a party, whichever first occurs, as specified under ss. 108.09 or 108.10, Stats. If a party first receives a determination after the statutory appeal period has expired and through no fault of that party, the statutory appeal period as specified under ss. 108.09 or 108.10, Stats., shall extend from the date the party receives the determination. An appeal received within these time limits is timely filed. If the deadline for filing an appeal falls on a Saturday, Sunday, any of the holidays enumerated under ss. 230.35 (4) (a) and 995.20, Stats., or any other day on which mail is not delivered by the United States postal service, then the deadline shall be extended to include the next business day.

The employee did not receive the first mailing of the adverse determination. She requested and received a copy on July 23, after the statutory appeal period had expired. Consequently, the administrative code section cited above applies, and her deadline was extended by the code to 14 days (the original length of time to appeal) after she actually received the determination. She did not mail her appeal until 25 days after the date of her receipt.

The employee testified that the claims specialist she spoke to told her that the appeal deadline would be extended 30 days after she received the duplicate initial determination. The employee's testimony in this regard was not disputed. Although the employee knew the name of the claims specialist who gave her the erroneous information, that claims specialist did not appear at the hearing. Rather, a different claims specialist, who did not speak to the employee, testified. He was not aware that the administrative code would have allowed the employee an additional 14 days to appeal. Further, he was unable to state with any certainty when the duplicate determination was mailed, so it was impossible to accurately gauge when the employee's 14 additional days would have expired. At any rate, the 14 days is no longer relevant since the undisputed testimony in the record is that the employee was incorrectly informed that she had an additional 30 days to appeal. The employee relied upon erroneous information given to her by the claims specialist and as a result, her appeal was late for a reason beyond her control.

The commission therefore finds that the employee's request for hearing was late 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, this matter is remanded to the Department of Workforce Development for hearing and decision on the merits.

Dated and mailed January 29, 2010
Santnsa2 . urr : 145 : 5 PC 711

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 who held the hearing. The commission did not reverse the ALJ's decision because of a differing impression of witness credibility but rather because it reached a different conclusion from the facts found by the ALJ and the undisputed facts in the record.


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