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

ALPHONSO YOUNG, Claimant

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99607435MW


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 claimant.

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 November 10, 1999, the last day on which a timely petition for review could have been filed was December 1, 1999. The claimant filed his petition for review by facsimile transmission on June 27, 2001.

The claimant has asserted that is petition for review was late because he never received the November 10, 1999 appeal tribunal decision. Even assuming the claimant is completely credible in this assertion, dismissal of the appeal still is in order. The courts have held that a delay of 18 months, in inquiring about the status of one's case, is fatal to the continuation of that case. In other words at some point, and the courts have held that point is less than 18 months, a party's failure to inquire about the status of his or her case constitutes abandonment by the party of the case. So it is here. The claimant knew he had proceedings pending before the department, since those proceedings were the result of his request for hearing. Then, the claimant waited more than a year and a half to inquire about the status of his case, by which time it had been just over a year and a half since the department had issued the appeal tribunal decision in this case. Based upon the claimant's lack of action in his case, the commission cannot find that his petition for review 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).

DECISION

The petition for review is dismissed.

Dated and mailed August 7, 2001
younga2 . upr : 105 : 1  PC 731

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner



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uploaded 2001/08/10