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

ANGELA K ROSENDALE, Employe

ALAILY INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99402155AP

An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A petition for review was filed by the employe.

Wis. Stat. § 108.09 (6)(a) provides, in relevant part, as follows:

"The department or any party may petition the commission for review of an appeal tribunal decision, pursuant to commission rules, if such petition is received by the department or commission or postmarked within 21 days after the appeal tribunal decision was mailed to the party's last-known address. The commission shall dismiss any petition if not timely filed unless the petitioner shows probable good cause that the reason for having failed to file the petition timely was beyond the control of the petitioner . . ."

Wis. Admin. Code § LIRC 1.02 provides, in relevant part, as follows:

"All petitions for commission review shall be received, or, in unemployment compensation, received or postmarked, within 21 days from the date of mailing of the administrative law judge's findings and decision or order, except as provided under this section. `Received' means physical receipt. A mailed petition postmarked on or prior to the last day of an appeal period, but received on a subsequent day is not a timely appeal, except in unemployment compensation. All petitions shall be in writing. . ."

Wis. Admin. Code § LIRC 2.01 (1) provides, in relevant part, as follows:

"A petition for commission review of the findings or order of an appeal tribunal decision under s. 108.09 or 108.10, Stats., shall be postmarked or received within 21 days from the date of mailing of the decision to the parties."

The administrative law judge's decision having been dated and mailed on November 12, 1999, the last day on which a timely petition for review could have been filed was December 3, 1999. The employe's petition was filed in person at the Eau Claire Hearing Office on December 14, 1999.

On December 2 the employe began developing a high level fever of approximately 103 degrees. On December 7 she was hospitalized for acute renal failure. She was sent a medical form to have completed by her doctor. The doctor was asked whether the employe could file a petition for commission review between November 12 and December 3, 1999, the physician answered "apparently not - per records she had been significantly ill five days prior to admission on Dec. 7".

The employe could have mailed or personally dropped the petitions off prior to the deadline, but the fact is she had the right to wait until December 3 to file her petition. By December 2 the employe was running a high level fever and was ultimately hospitalized.

The commission therefore finds that the petition for commission review was not timely and but that the employe has shown probable good cause that the reason for having failed to file the petition timely was for a reason beyond her control, within the meaning of Wis. Stat. § 108.09 (6)(a).

The commission has reviewed the record in this matter and agrees with the administrative law judge that the employe voluntarily terminated her employment but not for any reason that permits immediate benefit payment. The pain clinic was of a definite length- eight to ten weeks. The employe could have continued her employment until she finished with the pain clinic. At that time, if she were unable to perform her former work or work offered by the employer then she would have no alternative but to quit. However, at the time the employe quit she had not established that she was unable to do any work for the employer and had no reasonable alternative. While the employer pushed the employe to make a decision, it did not push a particular decision. It simply wanted to know what the employe intended to do. The employe had the option of continuing her employment. Further, it appears that the employe was not actually physically unable to perform the work offered to her or that the employer would have been unwilling to accommodate. For these reasons, the commission agrees with the administrative law judge that the employe has not established that her quitting fell within any statutory exception.

DECISION

The petition for commission review is accepted. The decision of the administrative law judge is affirmed. Accordingly, the employe is ineligible for benefits beginning in week 35 of 1999, and until four weeks have elapsed since the end of the week of quitting and the employe has earned wages in covered employment performed after the week of quitting equaling at least four times the employe's weekly benefit rate which would have been paid had the quitting not occurred.

Dated and mailed March 24, 2000
rosenan.upr : 132 : 1   PC 731

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

cc: COST CUTTERS

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