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

Subject: Michael J. Grabowski v. LIRC and Edge One, Inc., Case 11-CV-2531 (Wis. Cir. Ct., Milwaukee Co., July 20, 2011)

Digest Codes: PC 731 - LIRC review, late petition

An Appeal Tribunal decision, which dismissed a late appeal of a Department determination, was sent to the claimant on September 15, 2010. He filed a petition for commission review of that decision on November 16, 2010. He asserted that his appeal was late because he never received the decision in the mail. He asserted that he was in the process of moving at the time and did not file a change of address with the Department. He asserted that his unemployment caused his loss of residence, and that he did not have a fixed address as of September 15, 2010. he admitted, though, that he would sometimes check his mail at his old address. LIRC dismissed the petition for review as untimely.

Held: Affirmed. Failure to timely notify the Department of a change in address is not something that was beyond the claimant's control. In fact, quite the opposite he had complete control over his ability to provide the Department with an updated address, especially when he was aware that his unemployment insurance determination was pending. Furthermore, it is well-established that the mailing of a letter creates a presumption that the letter was delivered and received. The burden then shifts to the challenging party to present credible evidence of non-receipt. The Commission is the sole judge of the witness's credibility and the weight to be accorded to their evidence. After looking at the evidence above, the Commission did not believe that the decision had been lost in the mail, or that the claimant did not have control over the reason for failing to file a timely appeal. The Commission's decision was therefore reasonable.

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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