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

JAMES L CARPENTER, Employee

ST. CROIX CASINO, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing Nos. 11202724EC - 11202737EC, 11203757EC, 11203758EC & 11203760EC - 11203770EC[Footnote table reference omitted; footnotes renumbered]


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.

DECISION

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

MEMORANDUM OPINION

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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uploaded 2012/09/12


Footnotes:

(1)( Back ) Federal Additional Compensation (FAC) was a federal program created as part of the American Recovery and Reinvestment Act of 2009. The FAC program provided a $25 weekly supplement to the Unemployment Insurance (UI) payments. FAC was payable to individuals who have a benefit year that started prior to May 30, 2010, if they were otherwise eligible for compensation. The FAC program ended December 12, 2010. No FAC was payable for weeks of unemployment after December 11, 2010.

(2)( Back ) Wisconsin Statute 108.05(3)(b) provides as follows:

1. A claimant is ineligible to receive any benefits for a week if the claimant is engaged in employment with an employer from which the claimant was paid at least 80% of his or her base period wages and:

a. The claimant works full time for that employer in that week at the same or a greater rate of pay, excluding bonuses, incentives, overtime or any other supplement to the earnings, as the claimant was paid by that employer in that quarter of the claimant's base period in which the claimant was paid his or her highest wages;

b. The claimant receives from that employer sick pay, holiday pay, vacation pay or termination pay which, by itself or in combination with wages earned for work performed in that week for that employer, is equivalent to pay for full-time work at that same or a greater rate of pay; or

c. The amount that the claimant would have earned within that week from that employer in available work under s. 108.04 (1) (a) which is treated as wages under s. 108.04 (1) (bm), by itself or in combination with the wages earned for work performed in that week for that employer and the pay received under subd. 1. b., is equivalent to pay for full-time work at that same or a greater rate of pay.

(3)( Back ) The determination language provided:

THIS DETERMINATION ALSO RESULTS IN AN OVERPAYMENT OF FEDERAL ADDITIONAL COMPENSATION (FAC) BENEFITS THAT MUST BE REPAID. YOU WILL RECEIVE A SEPARATE "UCB-25 NOTICE OF FEDERAL ADDITIONAL COMPENSATION OVERPAYMENT" REGARDING THE AMOUNT OF FAC BENEFITS THAT MUST BE REPAID.