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


LISA R BRICE, Employe

Z HARVEST CAFE LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99001904MD


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 makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The initial determination in this matter was dated and mailed by the department on April 16, 1999. The last day for postmarking and/or filing a timely appeal was April 30, 1999. The appeal and request for hearing was sent by facsimile transmission and received by the department on May 12, 1999.

The employe explained that she had telephoned a department claims specialist within several days of receiving the determination and questioned the specialist regarding its effect. The claims specialist advised her that the issue of whether she quit or was laid off and whether this occurred in August or October had no effect on her eligibility claim. The employe filed her appeal after the department's Collection Section requested her to repay the $180 overpayment which resulted from the initial determination.

The employe contended that she was justified in filing a late appeal because she was given incorrect advice when she contacted a department claims specialist during the appeal period. The advice was incomplete with regard to the overpayment finding, however, it was correct as regarding her claim beginning in week 15 of 1999. Because of subsequent employment, a quitting in August or October of 1999 would not have disqualified her claim beginning in week 15 of 1999. Also, she had been disqualified on that claim for quitting her most recent employer and would have had to successfully appeal that determination in order to be eligible as of week 15 of 1999.

In this case, there was an initial decision about the employe's quitting, and an overpayment which resulted from that decision. The employe called a claims specialist, who requested her name and social security number. The claims specialist then would have access to the employe's records. Even if the employe had not, as she asserts, specifically asked about the overpayment, the claims specialist told the employe that the outcome of her case would not change. The claims specialist should have explained that the employe had an overpayment which would have been affected by a different determination on the issue of whether the employe quit or was discharged. The employe has the right to rely upon information given by the department. This is especially true in a case such as this, where the employe's claims history, and the manner in which the several decisions affected each other, was somewhat complicated. The employe's failure to understand the initial determination, even when the situation is complex, is generally not considered to be a reason beyond the employe's control for failing to file a timely appeal. This is because a claimant is expected to call the department for an explanation where he or she does not understand the determination. However, when the employe does contact the department and is given incomplete or erroneous information, and relies upon that information, the employe's failure to file a timely appeal is for a reason beyond the employe's control.

The commission therefore finds that the employe's 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 Chapter § DWD 140.

DECISION

The decision of the administrative law judge is reversed. Accordingly, this matter is remanded for a hearing and decision on the merits of the case.

Dated and mailed August 25, 1999
briceli.urr : 145 : 6   PC 711

David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The commission did not discuss witness credibility and demeanor with the ALJ but rather reverses the decision of the ALJ because it reached a different legal conclusion when it applied the law to the facts found by the ALJ. The commission notes that the employe's testimony was undisputed, and the department witness who did testify stated that she could see where the information that was given to the employe came from. She believed that the claims specialist probably was speaking in terms of whether the employe would receive any money immediately and not whether the overpayment should be stricken.


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