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


JEROME KOSMOSKI, Employer

UNEMPLOYMENT INSURANCE CONTRIBUTION LIABILITY DECISION
Account No. 151141, Hearing No. S9900245MW


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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the appellant's request for hearing on the merits is dismissed. The levy proceeding shall remain in effect.

Dated and mailed March 22, 2000
kosmoje.ssd : 105 : 3   PC 711

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

Assuming without deciding that the commission may take up the debtor's reason for the late appeal (when the debtor failed to raise it before the administrative law judge), the debtor still has not established that his appeal was late for a reason beyond his control. The commission in no way wishes to minimize the medical circumstances facing the employe and his wife's family, but the standard for a late appeal is a strict one and those circumstances do not meet it. By the debtor's own statement, he was not the only the family member who was assisting his mother-in-law during her treatment for lung cancer. The debtor asserts that he did not adequately focus on business-related matters mailed to him. This is understandable, but it is closer to the excusable neglect which would constitute good cause for missing a hearing, than it is to the stricter "reason beyond control" standard for late appeals. In addition, in circumstances like this the department and commission have regularly required parties to make some kind of arrangement for timely response to departmental matters. In other words, once the debtor knew the circumstances he would be dealing with regarding his family's medical circumstances, it was incumbent upon him to have made some kind of arrangements for dealing with matters pending before the department.

The late appeal standard is a strict one; few reasons meet it, and they are usually extraordinary. For example, an employer's late appeal was excused when, two days before the end of the appeal period, the employer's sister was suddenly scheduled for double transplant surgery in Chicago. The employer and her family, and her sister's family, essentially had to drop everything and go to Chicago. In that circumstance, the commission found that the employer's subsequent appeal was late for a reason beyond the employer's control. The circumstances the debtor in this case presents, while significant, yet do not appear to have been so immediate as to have prevented the debtor from filing a timely appeal from the notice of levy.

cc: ATTORNEY JERALYN B WENDELBERGER
ADELMAN & HAYNES SC

ANDREA SEEMAN
COLLECTIONS SECTION
BUREAU OF TAX & ACCOUNTING

DIRECTOR GREGORY FRIGO
BUREAU OF LEGAL AFFAIRS


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