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

PHYLLIS T EISENBERG, Claimant

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 09611514MW


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 March 31, 2010
eisenph . usd : 115 : 1 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 failed to perform a work search in week 25 of 2009, and denying benefits as a result, was dated and mailed on October 9, 2009, and stated on its face that it would become final unless a written appeal was postmarked or received by October 23, 2009.

The employee's appeal was filed on November 23, 2009, one month after the deadline.

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 explains that she was confused by the impact of an earlier determination. In her appeal, she identifies this determination as one issued on September 30, 2009; and, in her petition for commission review, as one issued on December 20, 2008. The employee represents that these determinations stated that "no unemployment benefits shall be forfeited."

However, unlike those cases in which the commission has found a reason beyond control based upon the simultaneous receipt of seemingly contradictory determinations(1), here, the determination the employee claims caused her confusion actually pre-dated the determination at issue. Reliance upon an earlier determination to conclude that a later determination would not result in the denial of benefits is not reasonable.

The employee has failed to offer a reason beyond her control for her untimely appeal.

The commission notes that the employee questions the department's efforts to collect an overpayment when none of the determinations she references in this matter imposed an overpayment. The employee is encouraged to contact the department with this question.

cc: Attorney Nathan Dane Eisenberg


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uploaded 2010/04/30


Footnotes:

(1)( Back ) See, e.g., Zyla v. Stock Lumber Inc., UI Hearing No. 96601492MW (LIRC May 23, 1996); Erspamer v. Adecco Employment Services Inc., UI Hearing No. 99400574GB (LIRC June 7, 1999); Wiles v. US Paper Converters Inc., UI Hearing No. 02401090AP (LIRC April 23, 2002).