MARK S ZYLA, Employee

STOCK LUMBER INC, Employer

An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Industry, Labor and Human Relations 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 the applicable law, records and evidence in this case, the commission makes the following:

On December 5, 1995, an initial determination was issued finding the employe was not able to work and available for work. That determination indicated that benefits were denied until the employe was able to work and available for work. The deadline for appealing that determination was December 19, 1995. The employe filed his appeal on December 30, 1995.

The employe also received an initial determination on December 5, 1995, indicating that he was discharged from Sussex Lumber but not for misconduct connected with his work. The determination indicated that "Benefits are allowed with respect to this issue only. Actual payment of benefits will depend on the resolution of another issue."

On December 9, 1995, the employe received a third initial determination which found that the employe was discharged from Stock Lumber but not for misconduct connected with his work. The determination stated that "Benefits are allowed."

The issue to be decided is whether the employe's failure to file a timely request for hearing was for a reason beyond his control. See sec. 108.09 (2r) and (4)(f), Stats. 

In this case, the employe explained that he did not file an appeal to the December 5, 1995, determination finding that he was not able to work and available for work because subsequent determinations led him to believe that he was ultimately eligible for benefits. The commission finds that the employe's reactions were the logical consequence of the determinations he received. The second determination mailed to him indicated specifically that his eligibility would depend on resolution of another issue. That issue was contained in the December 9, 1995 initial determination which simply indicated that benefits were allowed.

The commission therefore finds that the employe failed to file a timely request for hearing but has established that his failure to do so was for a reason beyond his control within the meaning of sec. 108.09 (4), Stats., and Chapter ILHR 140, Wis. Admin. Code.

The decision of the administrative law judge is reversed. Accordingly, this matter is remanded to the hearing office for a hearing and decision on the merits of the employe's appeal.

Dated and mailed May 23, 1996
zylamar . urr : 132 : 1  PC 711  PC 711.1

Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ David B. Falstad, Commissioner

The commission did not consult with the administrative law judge regarding witness credibility and demeanor. The administrative law judge reasoned that the last initial determination the employe received specifically indicated that eligibility would depend on resolution of another issue. However, the employe in fact received a third initial determination which indicated benefits were allowed. Accordingly, the commission has not reversed any credibility determination reached by the administrative law judge, but reverses because it reaches a different legal conclusion when applying the law to the facts.

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