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

COLLEEN A WAUKECHON, Employee

COLLEGE OF THE MENOMINEE NATION, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 09402876AP


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 July 18, 2009, the determination in this matter was dated and mailed to the employee's address of record. That determination described the procedure for requesting a hearing and stated that such request for a hearing must be received or postmarked by August 3, 2009, in order to be timely. The employee's request for hearing was received by the department on August 6, 2009.

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.

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.

Department records reflect that on July 23, 2009, the hearing office received a fax but that the page was blank. Department records reflect on July 23, that hearing office personnel attempted unsuccessfully to send a fax to the number requesting the information be refaxed. Department records also reflect that on July 23, hearing office personnel called the fax number and were able to speak with someone about the blank page and ask that a message be relayed to the employee.

The employee argued that her appeal was late for a reason beyond her control. She argued that she was unaware that the July 23 fax had failed. She argued that it was not until August 5 when she contacted the hearing office that she was notified that the fax had not gone through. The commission disagrees. The employee explained at the hearing that she went to a friend's house and they hooked up a fax machine and used it. They believed it was not hooked up right. The employee did not get a message that the fax did not go through and even when she got the document packet she never questioned her friend about why he did not relay the department's message to her. The employee blamed herself for not calling the department to check if the fax went through. The employee used a fax machine that belonged to someone else. Apparently that person did not use the machine frequently for they had to hook up the machine to use it. The most reasonable inference from the fact that the department received a blank piece of paper is that the employee faxed her appeal upside down. The employee chose to appeal by fax and it was her responsibility to ensure that the equipment she used was in working order and that her fax had been sent properly.

The commission therefore finds that the employee has not established that the failure to file a timely request for hearing was for a reason beyond the employee's control, within the meaning of Wis. Stat. § 108.09(4)(c) of the statutes and chapter DWD 140 of the Wisconsin Administrative Code.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee's request for hearing on the merits is dismissed. The initial determination shall remain in effect.

Dated and mailed February 3, 2010
waukeco . urr : 145 : 5 PC 711

/s/ 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 it disagreed with the ALJ's credibility determination. Rather, the commission reversed the ALJ's decision as a matter of law.



[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]


uploaded 2010/02/11