P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

NAIDA I SOTO, Employee


Hearing No. 03404410AP

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:


The department determination at issue here was dated and mailed on November 1, 2003, and stated on its face that it would become final unless a written appeal was postmarked or received by November 17, 2003. The employee's appeal was postmarked on November 26, 2003, and received by the department on November 28, 2003. As a result of this untimely filing, the department denied the employee's request for hearing in an appeal tribunal decision dated and mailed on December 22, 2003.

The employee filed a timely petition for commission review. Based on representations she made in this petition, the commission remanded this matter to the department for hearing on the issue of whether the employee's request for hearing was late for a reason beyond her control.

The subject determination was mailed to the employee, and the appeal period elapsed, while she was incarcerated in Sheboygan and Milwaukee counties. Upon her release, she reviewed the mail which had accumulated during her absence. The determination was not among this mail. Also upon her release on November 19, 2003, the employee immediately contacted the department to reopen the claim she had initiated on October 20, 2003. Through this contact with the department, the employee first learned that she was not eligible for benefits due to the subject determination. She apparently requested and received a duplicate determination in the mail some time after November 19, 2003. The employee then filed an appeal on November 26, 2003.

The commission finds that the employee, for a reason beyond her control, did not receive the original determination, and, upon receiving a duplicate determination from the department, filed a request for hearing within the 14-day extended appeal period specified in Wis. Adm. Code § 140.01(2). See, Mathe v. Automatic Handling Inc., UI Hearing No. 00402661AP (LIRC Oct. 27, 2000); DeJesus v. Meltric Corp., UI Hearing No. 03603251MW (LIRC June 30, 2003). The employee's request for hearing should be granted as a result.


The decision of the administrative law judge is reversed. Accordingly, the employee's request for hearing is granted, and this matter is remanded to the department for action in accordance with this decision.

Dated and mailed May 14, 2004
sotonai . urr : 115 : 1  PC 711

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

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uploaded 2004/05/24