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

Subject: Rex Dieterle v. LIRC and Advanced Separation & Process Systems Inc., Case No. 03 CV 2720 (Wis. Cir. Ct., Dane Co., February 23, 2004)

Digest Codes: PC 711

After interviewing him, a department investigator told an employee whose claim he was investigating that "they would spend some time making the decision". The employee decided it would probably be a week or so at least before the decision was issued, and he left on vacation, making arrangements to have his mail held at the post office. The determination was in fact issued only 2 days after the department investigator's statement. When the employee returned about 3 weeks later and picked up his mail, he found the determination and filed an appeal, but it was a few days late at that point.

Following a hearing, an Appeal Tribunal concluded the reason the appeal was late was not a reason beyond the employee's control. The employee appealed to LIRC, arguing that he was led to believe his return in two weeks would allow sufficient time to respond to an adverse decision, and that he had not been aware the commission had a policy that he had to monitor his mail if absent from home during the pendency of a UI claim and that that his actions were reasonable given the information he had available. LIRC's decision affirmed, noting that the adjudicator's statement was ambiguous and the employee was not justified in relying on it, and explaining that the requirement that a claimant monitor his mail during the pendency of a UI claim is not a commission policy nor a standard to which parties cannot be held unless specifically made aware, but a consistent LIRC interpretation of the "beyond control" standard.

The employee appealed to circuit court, arguing that he was denied due process of law because the commission's interpretation relied on an irrebuttable presumption of receipt of a determination from mailing, and arguing that he reasonably relied on the adjudicator's statement, that he had never been given notice of the commission's policy that mail should be monitored, and that such a requirement was an unreasonable one.

Held: Affirmed (Bench decision). The employee's argument based on a federal case involving issuance of a call-up notice to a reservist was inapposite because the law involved in that case was triggered by actual receipt, and not, as here, by date of mailing of the determination. There is no due process duty for an agency to inform people who may wish to appeal or who are bound by deadlines, how to handle the deadlines. Basic human common sense must prevail. The "some time" statement from the department adjudicator was ambiguous, and the employee's reliance on it was not reasonable. The court agrees with LIRC's interpretation of the "beyond control" standard in this context, to mean that if a person who knows that a decision is going to be issued on their claim and who is planning to be away from their home for a period of time does not take steps before they leave to deal with the possibility that the decision may be mailed to them during their absence, and as a result the person does not file a timely appeal, the reason their appeal is late is not a reason beyond the party's control. The court finds support for this interpretation of "beyond control" in Totsky v. Riteway Bus, 2000 WI 29, 28, 233 Wis.2d 371, 607 N.W.2d 637, interpreting the phrase "beyond a party's control" in a tort law context, equating "beyond a party's control" to an emergency situation.

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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