JULIE V DE BAUCHE, Employee

PRECISION MACHINE WERKS INC, Employer

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.

The decision of the administrative law judge is affirmed. Accordingly, the employee's request for hearing is dismissed. The initial determination remains in effect.

Dated and mailed August 19, 2011

debauju . usd : 152 : 1 BR 300 : SW 805

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

On February 8, 2011, the department sent the employee a notice informing her that she had exhausted her rights to all regular and extended unemployment benefits and that, when she filed her initial claim for extended training benefits for the week beginning December 26, 2010, she did not meet the eligibility requirements for payment. The notice informed that employee that, if she disagreed with the information provided or if she was enrolled in training, she could contact a claims specialist to file an objection. An appealable determination would then be issued to resolve any disagreement about the employee's eligibility.

On March 14, 2011, the employee wrote a letter to appeal the department's decision not to extend her unemployment benefits while she was attending college. The employee included the above-mentioned notice and indicated in her letter that no one from the department had called her back after she made several telephone calls inquiring about qualifying training. The employee asked that her letter be considered an appeal of the department's denial of her application for extended training benefits.

In response to the employee's March 14 letter, the department issued a determination on March 25, which held that the employee was not eligible for extended training benefits. The determination stated that the department's decision would be final unless a written appeal was received or postmarked by April 8. The employee wrote a second letter to the department on April 24. The letter was treated as a late appeal of the department's March 25 determination. The employee was sent a reasons for late appeal form on April 29 and given seven days to complete and return the form. The form was not returned. On May 9, the employee's appeal was dismissed in an appeal tribunal decision because the employee failed to establish that her appeal was late for a reason beyond her control.

In a letter dated May 19, the employee denied that she failed to file a timely appeal. She stated that she had filed appeals on March 14 and April 24. The employee's May 19 letter was forwarded to the commission as a petition for review. On June 24, the employee sent a letter directly to the commission, in which she recited her previous contacts with the department and requested a telephone hearing.

Contrary to her argument, the employee did not file a timely appeal to the department's determination finding her ineligible for extended training benefits. The department's February 8 notice was not an appealable decision. An appealable decision was not issued until March 25. It is impossible to appeal a determination before it has been issued. Mc Vicar v. Accelerated Broadband, Inc., UI Dec. Hearing No. 02202143MD (LIRC Jan. 29, 2003).

The commission has consistently held that it is within a party's control to thoroughly read determinations sent to the parties and to act in a prompt fashion. Thelen v. Tom's Quality Millwork Inc., UI Dec. Hearing No. 99003677MD (LIRC Dec. 22, 1999). The back side of each determination provides instructions on how to appeal and warns parties that, if they intend to appeal, they must do so by the date stated on the front of the determination. Because the employee wished to contest the department's denial of extended training benefits, the employee should have filed an appeal to that determination. If the employee was confused about why she would have to file another appeal, she should have contacted the department for clarification. Nothing submitted by the employee indicates that she was unable to follow the instructions contained on the March 25 determination and file an appeal within the 14-day period allowed by law.

It is clear from the employee's letters that she is confused about why she was denied extended training benefits despite attending college. Wisconsin Stat. § 108.06(7) governs extended training benefits. Under that provision, an employee who has exhausted all rights to regular benefits, emergency compensation benefits, extended benefits, and any other state or federal benefits may be eligible for extended training benefits, if the employee is otherwise eligible for benefits, is currently enrolled in approved training, and, if not in a current benefit year, has a benefit year that ended no earlier than 52 weeks prior to the week for which the employee first claimed benefits under the subsection. Approved training, as defined by Wis. Stat. § 108.04(16), includes both vocational training and basic education which is a prerequisite to such training. Approved training does not include a course of study that grants substantial credit toward a bachelor's or higher degree.

The employee's studies during the winter of 2010-2011 may or may not have qualified as approved training. However, the employee was not denied extended training benefits based on her schooling. The employee was denied extended training benefits because she did not exhaust her rights to all other program benefits within 52 weeks of the end of her applicable benefit year.

Finally, while the commission has the authority to set aside an appeal tribunal dismissal decision and order a hearing on the merits, that authority is exercised only in a few exceptional circumstances. The employee has not advanced any compelling reason to grant a hearing in this matter. Therefore, the employee's request for a hearing on the merits will not be granted. The department's determination remains in effect.

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