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

DANIELLE M HEIMAN, Employee

MARSHALL PET CLINIC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 10002190MD


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 Accordingly, the request for hearing is withdrawn. The initial determination remains in effect.

Dated and mailed July 9, 2010
heimada : 150 : 5 : PC 718

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

Ann L. Crump, Commissioner

MEMORANDUM OPINION

The initial determination was issued on March 25, 2010, finding that the employee quit effective week 14 of 2010, her quitting was not within any exception to allow for the immediate payment of benefits and although she was willing to work through week 14, the employer did not allow her to do so. The effect of the determination was that benefits were payable in weeks 11-13, if otherwise eligible and denied as of week 14 until the employee requalified for benefits. The determination had an April 8, 2010 appeal deadline.

The employee did not appeal the determination. The employer appealed electronically on the evening of April 5, 2010. The employee received notice of the employer's appeal when the hearing notice was mailed on May 27, 2010 notifying the parties of the hearing to be held on June 15, 2010. Prior to the hearing, on June 2, 2010, the employer withdrew its appeal by telephone and a withdrawal decision was issued that day.

The employee completed an electronic petition for commission review on June 15, 2010, indicating she had received the hearing notice and because of the employer's withdrawal, the hearing was cancelled and she did not get the opportunity to "state my case." There is no evidence that she attempted to appeal the determination herself.

The commission treats withdrawals as appealable decisions. See, Glasschroeder v. A 1 A Plus, UI Dec. Hearing Nos. 03401009AP and 03401010AP (LIRC March 4, 2004). The employee was a party to that decision and was affected by it. In carrying out review of a withdrawal decision, the commission first looks to whether there was in fact a withdrawal and then to the question of whether there was the request to retract the withdrawal that met the requirements of the department's rule. Glasschroeder. Wis. Admin. Code § DWD 140.05(2) provides, with emphasis,

(2) An appellant may submit a request to retract its withdrawal and reinstate its appeal. The retraction request shall be in writing and state a reason for the request. The administrative law judge may not grant a request to retract a withdrawal unless the request establishes good cause for the retraction and is received within 21 days after the withdrawal decision was mailed to the appellant.

The commission finds that the employee's request to have the withdrawal retracted does not meet the requirements of Wis. Admin. Code § DWD 140.05(2) because she is not the appellant and there is no retraction provision for respondents. Thus, the withdrawal decision is affirmed.

Finally, while the employee indicated that she did not have an opportunity to state her case, the employee could have appealed but elected not to do so and, as such, the "reasonable opportunity to be heard" language of Wis. Stat. § 108.09(4)(a) was met.

 


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