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

DONNA M ERSPAMER, Employe

ADECCO EMPLOYMENT SERVICES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99400574GB

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 employe in this case was the subject of an adverse initial determination issued on February 13, 1999. The last date for a timely request for hearing was March 1; the employe filed her request for hearing on March 9. The issue is whether her request for hearing was late for a reason beyond her control, pursuant to Wis. Stat. § 108.09. The commission concludes that it was, and so reverses the appeal tribunal decision.

The initial determination in issue held that the employe quit her employment, not for a reason constituting an exception to the general benefit disqualification. The determination included the usual requalification requirements, that no benefits would be payable for four weeks and until the employe earned at least $340 in covered employment.

The employe received an additional initial determination shortly thereafter, however, issued on February 26, 1999. That determination stated without qualification that the claimant had not received a bona fide offer of work, and also stated: "BENEFITS ARE ALLOWED." The employe disagreed with the February 13, initial determination, but did not appeal it on time because she received a "paper saying that [she] had failed to accept on February 10." The employe was referring to the February 26, 1999 determination which had stated, without qualification, that benefits were allowed.

Relevant commission precedent is Zyla v. Stock Lumber Inc., Hearing No. 96601492MW (LIRC 5-23-96). In that case, the employe received a disqualifying determination and a determination allowing benefits on the same day. The determination allowing benefits properly stated that benefits were allowed with respect to that issue only, that actual payment of benefits depended upon resolution of another issue. Shortly thereafter, the employe received a third determination which stated, without qualification, that benefits were allowed. In other words, the same thing happened to that employe as happened here. The employe received a disqualifying determination, and then subsequently a determination allowing benefits which stated without qualification that benefits were allowed. The commission held that the employe's appeal of the disqualifying determination was late for a reason beyond his control.

The same reasoning is applicable in the instant case. The commission therefore finds that the employe's request for hearing on the adverse February 13, 1999 initial determination was late, but that it was so for a reason beyond the employe's control.

DECISION

The appeal tribunal decision in this matter is reversed. Accordingly, the matter is remanded to the Department of Workforce Development for hearing and decision on the merits.

Dated and mailed June 7, 1999
erspado.urr : 105 : 1  PC 711  PC 711.1

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision in this case. The commission's basis for reversal is not a differing credibility impression from that of the administrative law judge; rather, the commission's reversal is based upon the above-cited precedent and, as such, is as a matter of law.

The dissent argues that the employe, in her March 8 letter of appeal, did not express any confusion regarding the various initial determinations the employe received. As indicated above, the employe did testify at hearing that she was confused by the receipt of a second initial determination. The employe made no reference at all in her March 8 letter of appeal to the fact that that letter was late. There thus is no inconsistency, as the dissent implies, between the employe's March 8 letter and the employe's subsequent testimony at hearing.

Pamela I. Anderson, Commissioner (dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. The employe received an initial determination which found that she quit not within any of the exceptions which allow for the immediate payment of unemployment benefits and she needed to requalify and no benefits would be payable for four weeks and until the employe had earned $340 in covered employment. That determination lists week 3 of 1999 as the week of issue. The determination went on the say "This determination results in an overpayment of $85.00 which the claimant must repay. The Department will withhold benefits due for future weeks of unemployment to offset overpayments of unemployment compensation and other special benefit programs that are due this state, another state or the federal government."

The appeal needed to be received or postmarked by March 1, 1999 to be timely. The employe wrote a letter of appeal on March 8, 1999 that was received by the Fox Valley Hearing office on March 10, 1999 that must at least be presumed to have been mailed by March 9, 1999. The appeal was late. The appeal letter does not express any confusion because she received another initial determination that indicated that she did not receive a bona fide offer of work on 2/10/99 which is in week 7. The employe argues that she did not quit that she was laid off. At the hearing the employe testified she called the department the day before she wrote the appeal letter (that would be March 7, 1999 after the appeal period), later she changes it to I know I talked to them on March 3rd.

She did not provide a reasonable explanation why the late appeal was for a reason beyond her control. The employe's petition for commission review gives another reason why her appeal was late and that was "I had misplaced it thinking that it was the normal statement similar to all the other ones I had received prior, after (finding) realizing the contents of the letter contacted the unemployment office." I agree with the administrative law judge that the employe's late appeal was not for a reason beyond her control.

For these reasons, I would affirm the administrative law judge's decision and dismiss the employe's request for a hearing on the merits.

__________________________________
Pamela I. Anderson, Commissioner

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