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

GINA M KAUFMANN, Employee

WAL-MART ASSOCIATES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 10005729MD

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 available information. Based on its review, the commission agrees with the decision of the ALJ, and it adopts 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 December 9, 2010
kaufmgi . usd : 115 : 2

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner


MEMORANDUM OPINION


A department determination finding that the employee had been discharged for misconduct was dated and mailed on September 16, 2010, and stated on its face that it would become final unless a written appeal was postmarked or received by September 30, 2010.

The employee's appeal was filed online on October 3, 2010.

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).

The employee explains that, at the time she received the determination, she was ill with asthma.

In order to satisfy the standard that there was a reason beyond her control for failing to file a timely appeal, the employee's medical condition during the appeal period is required to have been actually incapacitating, and to have prevented her from filing a timely appeal. See, McCloud v. Badger Meter, Inc., UI Hearing No. 99606530MW (LIRC May 10, 2000).

The employee does not clearly indicate in the information she provided in regard to her appeal that she was medically incapacitated during the appeal period. However, department records show that, in the claims for benefits she filed for that period of time, the employee indicated that she was able and available for work. Obviously, if the employee was able and available for work, she was not medically incapacitated and unable to craft and file an appeal due to such incapacity.

The employee also explains that, when she received the determination, she did not understand it. This explanation necessarily implies that the employee read the determination when she received it. It was certainly within the employee's control when she read the determination to note the appeal deadline. See, Thelen v. Toms Quality Millwork, Inc, UI Hearing No. 99003677MD (LIRC Dec. 22, 1999). Moreover, the commission has consistently held that it is within a party's control to contact the department, or some other appropriate resource in the community, to explain a department determination to them or to answer their questions as to department procedures in a manner which would enable them to file a timely appeal. See, Thelen supra.; Varnado v. MacMoore Ptrshp McDonald's, UI Hearing No. 04601995MW (LIRC March 26, 2004).


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