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


CYNTHIA B TRIPLETT, Employee

MILWAUKEE PUBLIC SCHOOL, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01600099MW


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 employee.

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 February 27, 2001, the last day on which a timely petition for review could have been filed was March 20, 2001. The employee's petition for review was postmarked April 10, 2001. It was received on April 11, 2001.

In the petition for review the employee's attorney contends that neither he nor the employee received notice of the hearing date. The attorney states that he contacted the hearing office in late March, at which time he learned that the matter had been dismissed. Such statement suggests that the employee's attorney did not receive a copy of the appeal tribunal decision dismissing the hearing request and, indeed, the file indicates that no copy of the decision was mailed to him.

The commission has held that the department's failure to send a copy of a document to the attorney of record provides the appellant with a reason beyond its control for having failed to file a timely appeal. Prince Cable, Inc., Hearing No. S9900227MW (LIRC, February 23, 2001). In the instant case, the appeal tribunal decision was not sent to the employee's attorney. The employee was entitled to assume that her attorney of record would receive a copy of the decision in time to act on her behalf. Where that did not occur, the commission concludes that the petition was late for a reason beyond the employee's control.

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

DECISION

The petition for review is accepted. The appeal tribunal decision is set aside and this matter is remanded for further hearing and a new decision with respect to the employee's failure to appear and, provisionally, on the merits of her case.

Dated and mailed May 16, 2001
triplcy . upr : 164 : 1  PC 731

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

 

cc: Attorney Stephen M Byers


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uploaded 2001/05/18