JEFFERY J MUSCHINSKE, Employee

MERRILL MFG CORP, Employer

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 April 19, 2001, the last day on which a timely petition for review could have been filed was May 10, 2001. The petition for review was received June 18, 2001.

On his reasons for late petition for commission review form the employee asserted that his petition was late because he was in jail. In addition, he asserts that he was so depressed that he did not open any of his mail, and was unaware that he could file a petition for commission review. While the commission appreciates that the employee was concerned about his situation and was feeling depressed, he was or should have been aware that he was receiving correspondence from the department and should have taken steps to attend to his correspondence. The employee has not alleged or presented any medical documentation to support a conclusion that his depression was so severe that he was unable to open his mail or deal with his normal, day-to-day responsibilities. Under the circumstances, the commission cannot conclude that the employee's petition was late for a reason beyond his control.

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).

The petition for review is dismissed.

Dated and mailed July 25, 2001
muschje . upr : 145 : 3  PC 731 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

cc: Merrill Manufacturing Corporation - Merrill, WI

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uploaded 2001/07/30