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

ROBERT F YOUNG, Employee

GANNETT MIDWEST PUBLISHING INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02402441AP


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

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee's request for hearing is dismissed. The determination shall remain in effect.

Dated and mailed August 8, 2002
youngro . usd : 164 : 1  PC 711

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner


MEMORANDUM OPINION

In the petition for commission review the employee's attorney argues that the administrative law judge abused her discretion by failing to accept the employee's hearing request, which was faxed to the hearing office at 9:02 a.m. on June 21, 2002, approximately 9 hours after the deadline for receipt. The employee's attorney suggests that, since the appeal would have been timely had it been faxed any time after 5:00 p.m. but before midnight on the previous night, even though no one would have looked at it until the following morning, there was no delay or prejudice presented by the timing of the actual receipt of the appeal by the hearing office. This argument fails. An appeal filed by fax is considered filed on the date of transmission recorded on the faxed appeal or, if no date of transmission is recorded, the date of receipt. Wis. Admin. Code § DWD 140.01(2)(c)7. The employee's appeal, which bore a June 21 date of transmission and was received on June 21, must be considered untimely. The administrative law judge has no discretion to accept a late appeal where the untimeliness was not for any reason beyond the party's control. To the contrary, the statute specifically provides that a late appeal shall be dismissed if it was late for a reason within the control of the appellant. See Wis. Stat. § 108.09(4); Wis. Admin. Code § DWD 140.04(2). The question of whether the late filing results in prejudice or administrative inconvenience has no bearing on the matter.

The employee's attorney also argues that the administrative law judge gave no consideration to the fact that the decision is not actually received until at least a day or two after it is mailed, which eats into the 14-day appeal period. This argument is without merit. The statute does not give a party 14 days from the date of receipt of the determination to file an appeal. Rather, the statute specifically states that an appeal must be received or postmarked "within 14 days after a copy of the determination was mailed or given to such party, whichever first occurs." Wis. Stat. § 108.09(2r). Thus, the clock began to run on the day the decision was mailed.

The employee received a copy of the initial determination within two to four days of its issuance, and had the determination in his possession for at least ten days prior to the appeal deadline. He provided the determination to his attorney on June 19, a day prior to the appeal deadline, which was clearly and accurately set forth on the face of the initial determination. The employee's attorney indicates that he wrote the employee's appeal on June 19, but chose to delay faxing it until after he had made revisions, then further postponed the matter to attend to other court work. The employee is responsible for the acts or omissions of his attorney, and the attorney's failure to file a timely hearing request was a matter of ordinary negligence and not a circumstance beyond his control. Accordingly, the appeal tribunal decision is affirmed.

cc: Attorney Keary W. Bilka


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uploaded 2002/09/03