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

DENNIS L BOWERS, Employee

DST INC. , Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 11400368AP


PROCEDURAL HISTORY

On January 19, 2011, a determination was issued finding that as of week 1 of 2011, the employee was required to have a license to perform his customary work for the employer and he lost his license due to his own fault. As a result the determination explained that:

(1) no benefits were payable from December 26, 2010 through
February 5, 2011 and;

(2) the employee may be eligible thereafter if he has another base
period employer from which benefits are payable.

The determination also assessed an overpayment of $265 that the employee was directed to repay.

The employee appealed the determination and, on Tuesday, March 15, 2010, a hearing was scheduled before an Administrative Law Judge (ALJ). Both the employee and employer appeared. In taking a position statement from the employee, the ALJ learned that the employee had lost his license due to his own fault and his commercial license was required to perform his customary work for the employer as a truck driver. The ALJ explained the relevant statutory provision and asked the employee whether he wished to withdraw his appeal. In doing so, she indicated that if he were to testify to the facts as he set forth in the position statement, the law would required the denial set forth by the determination. The employee withdrew his appeal.

The withdrawal decision was issued on March 17, 2011.

On March 22, 2011, the hearing office received a letter from the employee seeking to have a second appeal on the matter. In this letter, he wrote that he had performed some services for a few days immediately after the suspension and he, therefore, would like to receive unemployment benefits from the employer.

On April 20, 2011, the ALJ replied with a letter explaining that he did not establish good cause but merely restated the basis of his original appeal letter.

On April 26, 2011, the employee mailed another letter asking for unemployment insurance benefits questioning the effect of the provision in denying unemployment benefits and requiring that he get a job temporarily when he anticipates returning to employment with the employer in November presumably when his license is reinstated. The employee again referenced the limited work after the suspension. This letter was forwarded to the commission as a petition for commission review.

The issue before the commission is whether to treat the request as a petition for commission review and whether to grant the employee's request to retract his withdrawal.

First, the commission notes that while there have been changes to the format of the withdrawals issued by the department since the key case of Glasschroeder v. A 1 A Plus, UI Dec. Hearing Nos. 03401009AP & 03401010AP (LIRC March 4, 2004), the changes are minor and the commission continues to review withdrawal decisions as petitions for commission review under Wis. Stat. § 108.09(6). Correspondence similar to the employee's letter is treated as a late petition for review of the withdrawal decision. See Giesen v. Schutt Industries of Clintonville WI Inc., UI Dec. Hearing No. 07402172AP (LIRC January 18, 2008). Next, because the withdrawal issued by the department has "NOT APPLICABLE" written in the appeal deadline section, the Commission finds that the "lateness" of the petition is for a reason beyond the claimant's control. See Glasschroeder.

In reviewing whether a retraction request should be granted, the commission uses the standard set forth in Wis. Admin. Code § DWD 140.05(2); it provides that a request to retract a withdrawal and reinstate an appeal:

...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 employee's request to retract his withdrawal does not establish good cause for retraction; procedurally, while the ALJ could have held a simple hearing with the parties, her discussion at the time of the position statement was not improper. At first she only read a portion of the determination's effect; however, she did ask the important questions about other base period wages and, in finding there were no other base period wages, she explained the total denial of unemployment insurance benefits to the employee based upon the statutory provision, if the employee's testimony was in accord with his position statement.

Next, with respect to Wis. Stat. § 108.04(1)(f), although the result may seem harsh to the employee, it is a proper implementation of the statutory provision, which provides,

(f) If an employee is required by law to have a license issued by a governmental agency to perform his or her customary work for an employer, and the employee's employment is suspended or terminated because the employee's license has been suspended, revoked or not renewed due to the employee's fault, the employee is not eligible to receive benefits until 5 weeks have elapsed since the end of the week in which the suspension or termination occurs or until the license is reinstated or renewed, whichever occurs first. The wages paid by the employer with which an employee's employment is suspended or terminated shall be excluded from the employee's base period wages under s. 108.06 (1) for purposes of benefit entitlement while the suspension, revocation or nonrenewal of the license is in effect. This paragraph does not preclude an employee from establishing a benefit year using the wages excluded under this paragraph if the employee qualifies to establish a benefit year under s. 108.06 (2) (a). The department shall charge to the fund's balancing account any benefits otherwise chargeable to the account of an employer that is subject to the contribution requirements of ss. 108.17 and 108.18 from which base period wages are excluded under this paragraph.

The statutory provisions must be applied with the denial of benefits as written. Despite the employee's statements regarding the other limited work provided by the employer for him, his customary work required a CDL and his seeking a retraction on this ground also does not establish good cause.

The commission therefore finds that the employee's request for hearing was withdrawn, within the meaning of Wis. Stat. § 108.09(4)(a), and that the employee did not file a request to retract his withdrawal which met the requirements of Wis. Admin. Code § DWD 140.05(2).

DECISION

The withdrawal decision of the administrative law judge is affirmed. Accordingly, the request for hearing is withdrawn. The Initial Determination remains in effect

Dated and mailed May 26, 2011

bowerde : 150 : 1

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

cc: Wayne Kokta


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