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


TODD A STURK, Employe

RIVERSIDE PAPER CORP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98002564MD


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 the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

An initial determination adverse to the employe was issued May 29, 1998. The employe timely appealed that initial determination on June 5, 1998. On June 23, 1998 a Notice of Hearing was issued scheduling a hearing to be held at 1:30 p.m. on July 1, 1998. Both parties were scheduled to appear by telephone. The employer appeared but the employe did not. As a result, on July 2, 1998, an appeal tribunal decision was issued dismissing his appeal. The July 2 decision had a petition deadline of July 23, 1998. The employe filed a petition for commission review by letter postmarked July 27, 1998.

The initial issue to be decided is whether the employe's petition was late for a reason beyond his control. Wis. Stat. § 108.09(6)(a) provides:

"The department or any party may petition the commission for review of an appeal tribunal decision, pursuant to commission rules, if such petition is received by the department or commission or postmarked within 21 days after the appeal tribunal decision was mailed to the party's last-known address. The commission shall dismiss any petition if not timely filed unless the petitioner shows probable good cause that the reason for having failed to file the petition timely was beyond the control of the petitioner . . ."

The employe lives in a tent and receives his mail at a friend's address. He picks up his mail about once a month. Sometimes his mail is brought to him. The employe received the dismissal decision on or before July 21 and wrote out a petition letter that date and mailed it to the correct address. However, his appeal was returned to him stamped "Return to Sender." The employe did not know why the letter was returned. He immediately mailed his petition in another envelope. That later letter was stamped received at the Madison Hearing Office on July 30, 1998.

The commission finds the employe's petition was late for a reason beyond his control. He completed an original petition letter and mailed it within the petition deadline. There is no evidence that the petition was returned to him by the post office due to any fault on the part of the employe.

The second issue to be decided is whether the employe had good cause for failing to appear at the July 1, 1998 hearing. The employe's friend brought the Notice of Hearing to him at 7:30 p.m. on June 30, 1998. The employe testified he was working in Ely and living in a tent in the woods. The employe testified that he was working at the time and was not near a phone and therefore could not call the hearing office July 1. The employe testified he did not attempt to call the hearing office at 6:00 a.m. because he did not figure anyone would be there. He maintained he had no access to a phone prior to the time of the hearing.

The commission finds that the employe did not have good cause for missing the hearing. The employe was the appellant. It was his obligation to ensure that he received correspondence from the department in a timely fashion. The employe seemed to have no system of regular mail pick up. He picked it up once a month or if somebody was coming up to his tent they would drop it off. It was his obligation to make sure he checked his mail on a regular basis. If he had done so, arrangements could have been made to hold the hearing at a time convenient to the employe and via telephone. Further, it is difficult to believe there was no telephone available to the employe from 6:00 a.m. to 1:30 a.m. on July 1.

The commission therefore finds that the employe's petition was late for a reason beyond his control within the meaning of Wis. Stat. § 108.09(6).

The commission further finds that the employe failed to appear at a hearing held on July 1, 1998, and did not have good cause for failing to appear within the meaning of Wis. Stat. § 108.09(4).

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employe's request for a hearing on the merits is dismissed. The initial determination remains in effect. The employe is therefore ineligible for benefits beginning in week 17 of 1998, and until four weeks have elapsed since the end of the week of quitting and the employe has earned wages in covered employment equaling four times the weekly benefit rate which would have been paid had the quitting not occurred.

Dated and mailed: January 7, 1999
sturkto.urr : 132 : 1  PC 712.4  PC 731

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner


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