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


KERRY A BERG, Employe

KOHLER COMPANY, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 81A62822WK


ORDER

The Commission hereby sets aside its DECISION/ORDER dated September 30, 1998, and reinstates its DECISION dated May 28, 1998.

The reinstated decision dismisses the employe's late petition for commission review.

The employe should carefully review the further recourse available to him that is explained in the enclosure.

The effect of the commission's reinstatement of its May 28, 1998 decision is that the employe's late petition for review is dismissed because he has failed to show probable good cause that the reason for having failed to file the petition timely was beyond the employe's control, within the meaning of Wis. Stat. § 108.09(6)(a).

In turn, the effect of the dismissal of the employe's late petition is that the Amended Initial Determination dated April 13, 1981 remains the final administrative decision on the merits of the eligibility and overpayment issues, unless the employe successfully pursues his remaining recourse as explained in the enclosure.

The Amended Initial Determination held that the employe was not eligible and that he is liable for an overpayment of unemployment insurance benefits in the amount of $1785.

Accordingly, the employe's late petition for commission review is dismissed. The Amended Initial Determination dated April 13, 1981 remains the final administrative decision on the merits, and the employe is required to repay the overpayment of benefits in the amount of $1785.

Dated and mailed May 24, 1999
bergke.upr : 200 : 5   PC 731

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The employe timely appealed (requested a hearing) as to the Amended Initial Determination dated April 13, 1981. The department scheduled that hearing and sent a hearing notice to the employe at his last-known address of record with the department. The hearing notice was not returned as undeliverable by the postal service.

The employe failed to appear at the hearing he requested, and failed to provide an explanation or request a rescheduled hearing until more than sixteen years later. As a result of the employe's failure to appear at the hearing he had requested, the presiding administrative law judge issued an Appeal Tribunal Decision dismissing the employe's appeal. That decision was mailed to the employe's last-known address of record with the department and was not returned as undeliverable by the postal service. The employe did not timely file a petition for commission review. At some point, the employe learned of the lien that resulted from the overpayment; he then filed a petition for commission review--more than sixteen years late.

After reviewing the procedural history of the case, and considering the employe's arguments, the commission issued a decision dismissing the late petition. Subsequently, the commission acted on its own motion to set aside its dismissal decision and provide an opportunity for the employe to supply information about the date of his entry into military service. The commission took that action to ensure that its application of the "reason beyond petitioner's control" standard under state law was not contrary to the federal Soldiers and Sailors Civil Relief Act.

The commission's dismissal decision, and its subsequent order setting aside that decision, were both mailed to the employe's last-known address of record with the department and were not returned as undeliverable by the postal service. Five months after the commission's request for information in its set-aside order, the employe had not responded. By means of a letter from the commission's general counsel, the commission extended the employe another opportunity to provide information. The letter was mailed to the employe's last-known address of record with the department and was not returned as undeliverable by the postal service. The letter specified a deadline that allowed the employe more than thirty days to respond; the letter also explained the consequences of a failure to respond.

Two months after the letter described above was sent, the employe still had not responded. Accordingly, the instant decision reinstates the Commission's order dismissing the employe's late petition.

The effect of the reinstatement of the dismissal order is that a final administrative determination has now been made that the employe must repay the overpayment of benefits he received in the amount of $1,785. That result is subject to change only by a successful pursuit of the employe's remaining recourse, as described in the enclosure.

cc: SUPERVISOR MARY PERTZBORN
BENEFIT OVERPAYMENT COLLECTIONS UNIT


[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]