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

LARRY JOHNSON, Employee

BADGER TECHNICAL SERVICES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 10604344MW


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 June 11, 2010
johnsla2 . usd : 115 : 1 : PC 711

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION


Two department determinations denying benefits were issued:

ID# 050046064 (Hearing No. 10604342MW)-finding a concealment and imposing a forfeiture
ID# 050046054 (Hearing No. 10604344MW)-finding a quit with no qualifying exception and assessing an overpayment

Each determination was dated and mailed on January 21, 2005, and stated on its face that it would become final unless a written appeal was postmarked or received by February 4, 2005.

The employee's appeal of both determinations was filed on April 29, 2010, more than five years 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 determinations when he received them 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, "Because of my homeless status I was unable to properly get the documentation in that was needed to appear in court."

If the employee is asserting that he did not receive the determination during the appeal period because he did not have a permanent address, it was his responsibility, and within his control, to establish a reliable mechanism for the receipt of his mail during the period of time he had no permanent address. See, Strasser v. Frontier Motor Cars, Inc., UI Hearing No. 05606504MW (LIRC Oct. 28, 2005) (even if employee still "between houses" during appeal period, would not excuse untimely petition since his responsibility and within his control to establish a reliable mechanism for receiving and responding to time-sensitive mailings from the department); Mlodik v. Almond Bancroft School District, UI Hearing No. 05000194MD (LIRC June 23, 2005). This could have been done, for example, by utilizing the mailing address of a family member, friend, or shelter, or the general delivery address of a post office. See, McKnuckle v. Manpower, UI Hearing No. 03003743MD (LIRC March 30, 2007).

If the employee is asserting that his lack of a permanent address interfered with his ability to gather documentation relating to his employment, this would not justify his untimely appeal. Even though this information may have been useful to the employee in preparing for hearing, he did not need it in order to craft and file a timely appeal. See, e.g., Trego v. Seagull Aviation Parts, Inc., UI Hearing No. 02403884AP (LIRC March 7, 2003); Sims v. Rayovac of Madison Corp. Office, UI Hearing No. 03001749MD (LIRC Aug. 19, 2003); Woods v. Kohls Food Stores, Inc., UI Hearing No. 03603487MW (LIRC May 21, 2003); Minnick v. General Motors Corp., UI Hearing No. 03008018MD (LIRC Feb. 5, 2004).

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



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