Wisconsin Labor and Industry Review Commission --
Summary of Wisconsin Court Decision relating to Unemployment Insurance

Subject: H. W. Dean v. LIRC & Kraemer Brothers, LLC, Case 08 CV 124 (Wis. Cir. Ct., Columbia Co., February 5, 2009)

Digest Codes:  PC 711  PC 711.1

The department issued two initial determinations on October 19, 2007, one finding unavailability for work, and the other finding concealment. The last day for a timely request for hearing was November 2, 2007, but the employee did not mail his appeal until November 8, 2007. He asserted that he was confused by the receipt of a UCB-9347 that the department mailed to him on October 22, 2007. That form indicated in relevant part that the employee’s “benefit claim has been adjusted . . . you may be eligible for benefits again.” The UCB-9347 is routinely issued whenever there is an overpayment assessed, because such assessment means that the individual has been found ineligible for a certain period, presenting the possibility that such ineligibility may restore eligibility for future claims. The employee asserted that he believed the UCB-9347 meant the findings of the initial determinations were superseded by this document, and he was eligible again for benefits. When asked by the ALJ if he believed this, why did he mail an appeal on November 8, 2007, the employee asserted that he was confused by the “inconsistencies.”

The appeal tribunal and the commission both found the employee incredible and that his appeal was not late for a reason beyond his control.

Held: The commission’s dismissal of the late appeal is affirmed. The employee acknowledged seeing the language of the initial determinations indicating those determinations would become final unless appealed within 14 days. In fact, the employee wrote out an appeal on the 14th day, November 2, 2007, but did not mail it until November 8, 2007. He had no credible explanation for this. The employee also asserted that another reason he was confused was that he had sustained a recent closed head injury, but the court found there was no credible evidence to support the assertion that the head injury was in any way causative of his late appeal.  The record made it clear that it was the employee's choice to pick up his mail on an intermittent basis, and it was also his choice to not call about the possible reinstatement of benefits and his choice to to drop his note contesting the decisions in the mailbox on November 2.

Please note that this is a summary prepared by staff of the commission, not a verbatim reproduction of the court decision.

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