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


SUZANNE R KNUTSON, Employe

SCIENTIFIC MOLDING CORPORATION LTD, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00200191EC


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

On January 14, 2000 the department issued an initial determination which found that the employe was discharged for misconduct connected with her work. The last day to file a timely appeal was January 28, 2000. The employe filed her appeal by letter postmarked January 31, 2000 and received on February 2, 2000. A hearing was held on February 22, 2000, and the employe gave a variety of reasons for failing to file a timely appeal, however, none of those reasons amounted to a reason beyond her control for failing to file a timely appeal. Therefore on March 1, 2000 the department issued an appeal tribunal decision finding that her failure to file a timely request for hearing was not for a reason beyond her control. The employe filed a timely petition for commission review and on April 12, 2000, the commission issued a decision affirming the appeal tribunal decision. However, because the employe alleged that she was under a doctor's care during the appeal period, and had problems with new medications, the commission included with its decision a copy of a UCB-474 medical report.

The employe's physician indicates that the employe's medical condition significantly interfered with her ability to file a timely request for hearing. The physician indicates that the employe was "scattered and panicky." The employe testified, at the hearing, that this was basically the same diagnosis that her physician had given her at the time. She testified at the earlier hearing that she had difficulty concentrating or functioning and that she lost the ability to focus. However, the employe also testified that she had other impediments to filing a timely appeal, including her desire to see her personnel file and because she did not want to miss work. She was worried that she would have to take time off work for her hearing. The commission presumes, based on her diagnosis, that some of the other problems the employe mentioned were caused in part by her medical condition. Even if that were not the case, the medical evidence in the record indicates that the employe's medical condition significantly interfered with the employe's ability to file a timely request for hearing.

Therefore the commission concludes that the employe's failure to file a timely request for hearing was for a reason beyond her control, within the meaning of Wis. Stat. § 108.09(4).

DECISION

The decision of the administrative law judge is reversed. Accordingly, this matter is remanded to the department for a hearing and decision on the merits of the case.

Dated and mailed August 4, 2000
knutssu.urr : 145 : 3 PC 711

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did not discuss witness credibility and demeanor with the ALJ who issued the decision, but bases its decision on evidence presented at the remand hearing. This evidence was not available to the ALJ when he made his decision, nor to the commission when it made its original decision.


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