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

KRISTEN M LEGACY, Employee

LEIAS RENU, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 12001056MD


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 it has reviewed the evidence submitted to the ALJ. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

On or about February 16, 2012, the department commenced an investigation into the claimant's benefit eligibility. The claimant did not respond to the department's request for information. On February 28, 2012, the department issued an initial determination which held that the employee quit her employment but not for a reason that would permit the immediate payment of benefits. As a result, benefits were suspended and the employee was required to repay an overpayment of benefits in the amount of $12,081 (of which $439 was included in another determination). The deadline for filing a timely appeal to the initial determination was March 13, 2012. It was undisputed that the employee filed a late appeal.

The issue to be resolved is whether the employee's appeal was late for a reason beyond her control.

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 Dec. Hearing No. S9900245MW (LIRC March 22, 2000).

Departmental records indicate that the employee last filed a weekly claim certification on October 24, 2011 (week 44), for week 43 of 2011. She resumed her claim for Emergency Unemployment Compensation (EUC) benefits on October 25, 2011 (week 44); however, she never filed a weekly claim certification for week 44 of 2011. In her petition for commission review, the employee asserts that she was unaware of the department's investigation into her benefit eligibility in February of 2012 and had no reason to believe that she would be receiving time-sensitive mail from the department when she was not filing.

The employee testified that she made arrangements for the post office to hold her mail prior to leaving for a trip in mid-February of 2012. The employee was ill when she returned to her residence and, as a result, extended the hold on her mail. She then traveled to Chicago for a business trip. She did not immediately have her mail delivered to her residence upon returning from her business trip because she was busy working and did not expect to receive any time-sensitive mail. On March 15, 2012, the employee retrieved her mail from the post office and discovered the initial determination. Later that day, she filed her online appeal via the department's website.

While the commission has held that parties have a responsibility to establish a reliable mechanism for receiving and reviewing their mail during the period of time they are away from their addresses of record, the employee in this case had no reason to believe that she would be receiving time-sensitive mail from the department at the time of the investigation and the issuance of the determination. The employee had not filed for benefits for approximately four months preceding the department's investigation.

The commission addressed a similar fact pattern in In re Thorison, UI Dec. Hearing No. 07400610AP (LIRC May 17, 2007). The commission found that the claimant "should have taken steps to ensure that he receive[d] all important correspondence. However, because he had not filed for benefit[s] for about seven months, the claimant . . . would not have been aware that he was going to be receiving correspondence from the department[.]" As such, the commission held that the claimant's late appeal was for a reason beyond his control.

Applying the principle outlined in Thorison to the present case, the commission therefore finds that the employee has established that her failure to file a timely request for hearing was for a reason beyond her control, within the meaning of Wis. Stat. § 108.09(4)(c) and Wis. Admin. Code. ch. DWD 140.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the matter is remanded to the hearing office for a hearing on the merits of the initial determination.

Dated and Mailed June 26, 2012

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

NOTE: The commission did not consult with the ALJ prior to reversing the appeal tribunal decision. The reversal is based upon a differing legal conclusion considering the same facts as relied on by the ALJ and not differing credibility.


legackr2 . urr : 102 : 1

cc: Kristen M. Legacy

 


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