JAMES L CARPENTER, Employee
ST. CROIX CASINO, Employer
An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued the above decisions. The employee timely petitioned the commission for review of the appeal tribunal decisions.
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 decisions of the ALJ, and it adopts the findings and conclusion in those decisions as its own.
Each of the listed decisions of the administrative law judge is affirmed. Accordingly, the employee's request for a hearing on the merits of each determination underlying the above hearing numbers is dismissed. The determinations shall remain in effect.
Dated and Mailed February 24, 2012
BY THE COMMISSION:
/s/ Robert Glaser, Chairperson
/s/ Ann L. Crump, Commissioner
/s/ Laurie R. McCallum, Commissioner
On January 10, 2012, 31 appeal tribunal decisions were issued dealing with the timeliness of the employee's request for hearings. The underlying hearings were conducted at the same time by the same ALJ and for each determination the same request for hearing applied, a letter of appeal postmarked September 16, 2011. This commission decision is issued for the 27 listed hearing numbers; attached is a table listing each hearing number individually setting forth initial determination number, date the determination was mailed, its appeal deadline and the week of issue involved.
Each appeal tribunal decision set forth the specifics of its underlying initial determination. Each determination explained that, if not appealed timely, the decision would be final and each determination set forth the appeal procedures on the reverse side. The employee agreed that he did not appeal the determinations timely and conceded that he had timely requested hearings for other determinations unrelated to current matters.
Wisconsin Statute § 108.09(2r), Hearing request provides,
Hearing request. Any party to a determination may request a hearing as to any matter in that determination if such request is made in accordance with procedure prescribed by the department and is received by the department or postmarked within 14 days after a copy of the determination was mailed or given to such party, whichever first occurs.
Wisconsin Statute § 108.09(4)(c) provides that a party will be allowed a hearing on the issue underlying a late appeal only if the failure to timely appeal was for a reason beyond the party's control. The ALJ dismissed the employee's late request for hearings, finding that he did not establish that the appeals were late for reasons beyond his control.
The employee petitioned, specifically objecting to the federal additional compensation(1) overpayments created at the time the determinations were issued. At the hearing, the employee indicated that he may or may not have received each determination when mailed to his address of record, a post office box. Because there is a presumption that mail properly addressed is received, the burden fell on the employee to prove that he did not receive the determination. Toddliz, Inc., UI Dec. Hearing Nos. S9800272MD, etc. (LIRC Feb. 23, 2001). Like the ALJ, the commission finds that the employee's own testimony that he was unsure whether he received the determinations, failed to satisfy this burden.
Next, each determination denied partial benefits to the employee pursuant to Wis. Stat. 108.05(3)(b).(2) As a result of the employee's ineligibility for any unemployment benefits in each week of the 27 weeks involved, the employee was not eligible for any FAC payment in those weeks. Each determination explained that FAC had been overpaid in that week.(3) If the employee wished, when he received the determinations as they were issued, he could have contacted a claims specialist to determine the weekly $25.00 FAC amount.
Under these circumstances, the commission finds that the employee was apprised of the FAC overpayment and of the procedures to challenge the overpayment. He failed to establish that his failure to timely appeal these determinations was for a reason beyond his control. Thus, while the commission is sympathetic to the employee's financial difficulties, it must apply the law as written and his request for hearing in the above matters is dismissed.
Hearing No |
Initial determination Number and Week of issue |
Date initial determiNation mailed |
appeal deadline |
UI OP LISTED WITH fac LANGUAGE |
11202724EC |
090437095 - wk 25/09 |
8/08/09 |
8/24/09 |
$17.00 |
11202725EC |
090447655 - wk 26/09 |
8/13/09 |
8/27/09 |
$19.00 |
11202726EC |
090426685 - wk 27/09 |
8/04/09 |
8/18/09 |
$17.00 |
11202727EC |
090618025 - wk 41/09 |
11/05/09 |
11/19/09 |
$49.00 |
11202728EC |
090666955 - wk 44/09 |
11/25/09 |
12/09/09 |
$9.00 |
11202729EC |
090736965 - wk 47/09 |
12/31/09 |
1/14/10 |
$36.00 |
11202730EC |
100031835 - wk 49/09 |
1/16/10 |
2/01/10 |
$34.00 |
11202731EC |
100034935 - wk 50/09 |
1/20/10 |
2/03/10 |
$29.00 |
11202732EC |
100136365 - wk 6/10 |
2/27/10 |
3/15/10 |
$10.00 |
11202733EC |
100136315 - wk 7/10 |
2/27/10 |
3/15/10 |
$10.00 |
11202734EC |
100217035 - wk 10/10 |
3/31/10 |
4/14/10 |
$10.00 |
11202735EC |
100216925 - wk 11/10 |
3/31/10 |
04/14/10 |
$5.00 |
11202736EC |
100236095 - wk 12/10 |
4/09/10 |
4/23/10 |
$5.00 |
11202737EC |
100254925 - wk 13/10 |
4/17/10 |
5/03/10 |
$5.00 |
11203757EC |
110023265 - wk 50/10 |
1/12/11 |
1/26/11 |
$5.00 |
11203758EC |
100788695 - wk 44/10 |
12/07/10 |
12/21/10 |
$5.00 |
11203760EC |
100671455 - wk 39/10 |
10/30/10 |
11/02/10 |
$10.00 |
11203761EC |
100701195 - wk 38/10 |
10/19/10 |
11/12/10 |
$10.00 |
11203762EC |
100620585 - wk 37/10 |
9/29/10 |
10/13/10 |
$10.00 |
11203763EC |
100614145 - wk 34/10 |
9/25/10 |
10/12/10 |
$5.00 |
11203764EC |
100577905 - wk 33/10 |
9/11/10 |
9/27/10 |
$13.00 |
11203765EC |
100539945 - wk 31/10 |
8/25/10 |
9/08/10 |
$10.00 |
11203766EC |
100539685 - wk 30/10 |
8/25/10 |
9/08/10 |
$5.00 |
11203767EC |
100470065 - wk 27/10 |
7/23/10 |
8/06/10 |
$5.00 |
11203768EC |
100462905 - wk 26/10 |
7/21/10 |
8/04/10 |
$5.00 |
11203769EC |
100447685 - wk 24/10 |
7/14/10 |
7/28/10 |
$5.00 |
11203770EC |
100410165 - wk 23/10 |
6/25/10 |
7/09/10 |
$5.00 |
CARPEJA : 150 : 9
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