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

SYLVESTER LOMACK, Employee

LEHMANNS BAKERY, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00606720RC

An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A petition for review was filed by the employe.

Wis. Stat. § 108.09 (6)(a) provides, in relevant part, as follows:

"The department or any party may petition the commission for review of an appeal tribunal decision, pursuant to commission rules, if such petition is received by the department or commission or postmarked within 21 days after the appeal tribunal decision was mailed to the party's last-known address. The commission shall dismiss any petition if not timely filed unless the petitioner shows probable good cause that the reason for having failed to file the petition timely was beyond the control of the petitioner . . ."

Wis. Admin. Code § LIRC 1.02 provides, in relevant part, as follows:

"All petitions for commission review shall be received, or, in unemployment compensation, received or postmarked, within 21 days from the date of mailing of the administrative law judge's findings and decision or order, except as provided under this section. `Received' means physical receipt. A mailed petition postmarked on or prior to the last day of an appeal period, but received on a subsequent day is not a timely appeal, except in unemployment compensation. All petitions shall be in writing. . ."

Wis. Admin. Code § LIRC 2.01 (1) provides, in relevant part, as follows:

"A petition for commission review of the findings or order of an appeal tribunal decision under s. 108.09 or 108.10, Stats., shall be postmarked or received within 21 days from the date of mailing of the decision to the parties."

The administrative law judge's decision having been dated and mailed on September 8, 2000, the last day on which a timely petition for review could have been filed was September 29, 2000. The petition for review was received October 13, 2000. It was postmarked October 12, 2000.

The employee's original petition for review, which he asserts he mailed timely, was returned to him postage due. Specifically, there was only a one cent stamp on the envelope, leaving postage due to 32 cents. This means the employee's petition was late because he failed to put proper postage on it; that was a matter within the employee's control, so his petition for review cannot be said to have been late for a reason beyond his control. The employee asserts that he put the proper postage on the envelope, that one of the stamps must have simply fallen off. The envelope itself contains no indication whatsoever, however, that any other stamp was ever on it. For this reason, the commission must reject the employee's assertion that he placed the proper postage on the envelope. Absent a timely petition or one which was late for a reason beyond the employee's control, the above-cited laws require dismissal of the appeal.

The commission therefore finds that the petition for commission review was not timely and that the petitioner has not shown probable good cause that the reason for having failed to file the petition timely was beyond the petitioner's control, within the meaning of Wis. Stat. § 108.09 (6)(a).

DECISION

The petition for review is dismissed.

Dated and mailed October 30, 2000
lomacsy . upr : 105 : 1 PC 731

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

Appealed to Circuit Court.  Affirmed April 19, 2001. [Circuit Court decision summary]

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uploaded 2001/04/20