Section 33
APPEALS, Check copy determinations, Finality of determinations and redeterminations
CITE AS: Kwit (Manufacturing Data Systems, Inc.) 1984 BR 89652 (B82 17032 R01).
Appeal pending: No
Claimant: Steven W. Kwit
Employer: Manufacturing Data Systems, Inc.
Docket No: B82 17032 RO1 89652
BOARD OF REVIEW HOLDING: The Referee lacks jurisdiction to consider either an issue that has become final for lack of a protest or an issue not set forth in the notice of hearing unless the Referee advises the claimant of the new issue and secures a knowing and informed waiver.
On September 7, a redetermination was issued holding claimant ineligible for the week of August 15, which only the claimant appealed. The notice of hearing did not refer to the period in the redetermination, but the Referee defined the scope of the hearing as the period covered in the redetermination. However, the Referee held the claimant ineligible for the period from July 4, through October 21.
DECISION: The Referee did not have jurisdiction to consider the issue of claimant's eligibility for any week other than the week of August 15.
RATIONALE: Section 32(d) allows the employer to protest check determinations after the date of the determination or redetermination allowing the benefits which are the subject of the appeal before the Referee up to the date of the Referee hearing. The employer did not protest or appeal from a determination or redetermination allowing benefits. "Therefore, benefits paid to the claimant became final after the statutory twenty day period and were not "subject to further consideration pursuant to MES Section 33." The Referee was thus time barred from reviewing the claim ant's eligibility with the exception of the one week denial protested by the claimant ... "
"MES Board of Review rule 206(2) prohibits, absent a knowing and informed waiver, the taking of any evidence on an issue of which the parties have not been placed on notice by means of the notice of hearing. Thus, even if benefit checks had been issued shortly before the Referee hearing but with regard to which the check copy determinations had not yet become final by the date of that hearing, we would nevertheless reverse the Referee's findings as to those weeks and find the claimant had satisfied the availability requirements of Section 28(1)(c)."
EDITOR'S NOTE: Also see Rule 206 of the Rules of Practice, which has been revised since Kwit.
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