ROGELIO A. MORALES, Claimant

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.

The decision of the administrative law judge is affirmed. Accordingly, the employee's appeal is dismissed.

Dated and mailed March 22, 2004
moralre . tsd : 110 :   PC 711

/s/ David B. Falstad, Chairman

James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

The department's Initial Determination in this case was issued on October 10, 2003, and the last day to appeal was October 24. However, no appeal was filed until November 12, more than a month after the Initial Determination was issued. The claimant acknowledged that his appeal was late and offered the excuse that this was "because of a death in the family and lack of finding translation services". The administrative law judge rejected this explanation as not even raising an inference that the appeal was late for reasons beyond the claimant's control.

In his petition for commission review, the claimant says:

.This is an appeal of the decision made by the Appeal Tribunal Decision concerning my late appeal . . . as stated before, due to a death in the family and not understanding the letter I received in English I was unable to determine that a response was required or needed if I disagreed with that decision, since I was unable to understand this communication I feel that even though this appeal is late I should be allowed a hearing.

However, if the claimant did not understand the Initial Determination, he had an obligation to try to find someone who did who could explain it to him.

... [T[he law requires that the employee establish that it was beyond his control to file a timely appeal. The commission has consistently held that it is within a party's control to thoroughly read determinations sent to the parties. Even individuals who are unable to read, whether it is because English is not their native language or otherwise, are expected to find someone who can read to explain the determination to them.

Thelen v. Toms Quality Millwork Inc (LIRC, December 22, 1999).

The commission is sure that if he had tried, the claimant would have been able to find someone who could translate the Initial Determination for him so that he could understand it effect and how to appeal it. Milwaukee is a community with enough people and community resources, that obtaining translation into Spanish of a document such as the Initial Determination would clearly be possible. Certainly, it cannot be said that it would be beyond a person's control.

While it is of course regrettable that the claimant suffered a death in his family, he has not explained how or why this contributed to his failing to file a timely appeal.

For these reasons, the commission agrees with the decision of the administrative law judge that there is no basis for deciding that the claimant's appeal was late for a reason beyond his control.

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uploaded 2004/03/23