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


JEFFERSON BARNES, Employe

PARKING LOT MAINTENANCE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99602401MW


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

An initial determination issued on September 26, 1998 found that the employe was ineligible for benefits based on a quitting and contained wage requalifying requirements of $1160. Another initial determination found that the employe had been discharged for misconduct connected with his work for the same employer and in the same week. That determination set fourth a wage requalifying requirement of $4060. The last day to file a timely appeal to the two adverse determinations was October 13, 1998. The employe was in an in-patient drug rehabilitation clinic from September 12 through December 18, 1998. He was not allowed to have contact with the outside for the first 30 days. He did not see the determinations until November, when he was allowed to leave the program to go to work. He contacted the UI office and was told that he had to work and make $1600. He obtained temporary employment and made that amount. When he was laid off he filed for UI. He was then told he had to write an appeal. The employe appealed the adverse determinations on March 25, 1999.

The issue to be decided is whether the employe filed late appeals for a reason that was beyond his control.

The commission generally requires a UI claimant absent from home during a UI claim to have mail monitored by a responsible individual to allow the claimant to respond to any time sensitive documents, such as an initial determination, that the department sends to the claimant. However, this requirement applies where the claimant will be able to be told of, and respond to, the documents received. Here, even if the employe had his mail monitored, he was not allowed contact with individuals outside of the rehabilitation center. There was no way for the employe to file an appeal within the appeal period.

The commission therefore finds that the employe filed a late request for hearing but that his request was late for a reason that was beyond his control within the meaning of Wis. Stat. § 108.09(4) and Wis. Admin. Code § 140.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is entitled to hearing on the merits of his case.

Dated and mailed July 2, 1999
barneje.urr : 132 : 6 PC 711

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did not speak with the administrative law judge regarding witness credibility or demeanor. The commission's decision is not due to any disagreement with the administrative law judge regarding witness credibility.


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