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


DIANE A SCHULTZ, Employe

MORTGAGE COUNSELORS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99605190MW


An administrative law judge 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 administrative law judge. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

An initial determination adverse to the employe was issued on July 2, 1999. The last day to file a timely appeal was July 16. The employe's hearing request was postmarked July 21 and received on July 23.

On August 10, 1999, a hearing was held with respect to the timeliness of the employe's request for hearing. At the procedural hearing the employe testified that on July 20 she found a variety of envelopes in her doorway, including the initial determination in question. The employe indicated that the letters must have been delivered to someone else, who then left them in her doorway, since the mailman would have put them in her mailbox. She testified that she filed her appeal as soon as she could and, when asked why she did not mention the untimeliness issue in her appeal, indicated that she could not say why not, other than that she was concerned with getting all of her information to the department.

Wis. Stat. 108.09(2r) provides that a party may request a hearing as to any matter in an initial determination if such request is made in accordance with procedures prescribed by the department and is received by the department or postmarked within 14 days after a copy of the determination was mailed or given to the party, whichever occurs first. An untimely hearing request will be dismissed unless the party filing the request shows that the reason for having failed to file the request timely was beyond the party's control. Wis. Stat. 108.09(4)(c).

The issue to be decided is whether the employe's failure to file a timely hearing request was for a reason beyond her control.

The appeal tribunal did not credit the employe's testimony about the misdelivery of her mail, reasoning that it was hard to believe the employe would have received all of her documents from the department, including other determinations issued more than a week prior to that at issue in this case, all at the same time. However, the record does not indicate that the employe received other correspondence from the department on the same date as she received the determination in question. Moreover, the commission sees nothing inherently incredible in the employe's testimony that some of her mail was misdelivered and subsequently placed in her doorway, whether or not it included prior department correspondence. The Postal Service is not infallible, and it does not strain credulity to believe that mail could have been delivered to the wrong address, then returned to the employe by the recipient at a later date.

In rejecting the employe's claim that her hearing request was late for a reason beyond her control, the appeal tribunal also noted that the employe failed to mention the matter in her letter of appeal. However, there is no reason to believe the employe understood that anyone would be scrutinizing her appeal for an explanation as to why it was late and the employe credibly explained that, in drafting her letter of appeal, she was concentrating on laying out the facts in her case.

The commission, therefore, finds that the employe failed to file a timely hearing request but that her failure to do so was for a reason beyond her control, within the meaning of Wis. Stat. 108.09(4) and Wis. Admin. Code chapter DWD 140.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe's appeal is not dismissed. The commission remands this matter to the hearing office for a hearing and decision on the merits of the employe's appeal.

Dated and Mailed November 24, 1999
schuldi.urr : 164 :  6   PC 711

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

NOTE: The commission conferred with the administrative law judge regarding witness credibility and demeanor. The administrative law judge indicated that he did not credit the employe's testimony regarding her untimely receipt of the initial determination. However, for the reasons set forth in the body of the decision, the commission credits the employe's testimony and believes that her appeal was late for a reason beyond her control.


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