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


WALTER McCLOUD JR, Employe

BADGER METER INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99606530MW


On August 26, 1999, the Department of Workforce Development issued an initial determination which held that the employe had been discharged for misconduct connected with his employment. The employe filed a late request for hearing and, on September 29, 1999, hearing was held in Milwaukee, Wisconsin before a department administrative law judge on the issue of the timeliness of the employe's request for hearing. On October 4, 1999, the administrative law judge issued an appeal tribunal decision dismissing the employe's request for hearing. The employe filed a timely petition for commission review of the dismissal decision and, by December 15, 1999 order, the commission remanded the matter for additional hearing on the issue of the timeliness of the employe's request for hearing. That hearing was held on April 6, 2000; the matter is again before the commission, and is ready for disposition.

Based upon the applicable law and the record and other evidence in the case, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The issue in this case is whether the employe's late request for hearing was so for a reason beyond his control, within the meaning of Wis. Stat. § 108.09 (4). The commission concludes that it was, and so reverses the appeal tribunal decision and remands the matter for hearing and decision on the merits.

The department issued the initial determination in question on August 26, 1999, and the employe received it within a few days thereafter. The last date for a timely request for hearing was September 9; on September 8, however, the employe experienced an anxiety attack which lasted until September 10 or 11. Because of the attack, the employe was unable to leave his house. He also was out of medication he uses to control his condition, generalized anxiety disorder, and was able to obtain that medication only on September 13. Absent medication, the employe's condition renders him unable to cope with normal social situations. The employe's physician was asked whether the employe's medical condition would prevent the employe from filing an appeal on time. The physician responded "possibly, yes, due to the effects of anxiety on social inhibitions." In other words, the employe's physician is indicating that the employe's medical condition could have prevented him from filing a timely appeal; the employe's testimony establishes that his medical condition did prevent him from filing the timely appeal. This is sufficient to establish that the employe's request for hearing was late for a reason beyond his control.

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

DECISION

The appeal tribunal decision is reversed. Accordingly, this matter is remanded to the Department of Workforce Development for hearing and decision on the merits (whether the employe's discharge was for misconduct for unemployment insurance purposes).

Dated and mailed May 10, 2000
mcclowa.urr : 105 : 3   PC 711

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/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 reversal is not based upon a differing credibility assessment from that made by the administrative law judge. Rather, the commission's reversal is based upon evidence from the remand hearing, evidence not available to the administrative law judge when he issued the October 4, 1999 appeal tribunal decision.


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