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

CAROL J TREGO, Employee

SEAGULL AVIATION PARTS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02403884AP


Pursuant to authority granted in Wis. Stat. § 108.09(6)(b), the commission sets aside its February 18, 2003 decision and re-issues it below.

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.

Wisconsin 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 . . ."

Wisconsin 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. . ."

Wisconsin 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 December 5, 2002, the last day on which a timely petition for review could have been filed was December 26, 2002. The employee filed her petition for review by facsimile transmission on December 27, 2002.

The employee's petition for review was late because the employee was waiting for certain documentation from OSHA to support her claim of good cause for her quit of employment. This does not constitute a reason beyond control for a late appeal, however, for the following reason. The employee knew the documentation in question would be forthcoming. Once she knew it would not be available by the end of the appeal period, it was her obligation to file her appeal on time and then supplement the appeal with the documentation, once it was available. That is, the employee could have filed her petition for review on time notwithstanding the unavailability at the time of the documentation in question. For this reason, the lack of documentation cannot be deemed to have caused the late petition for review. Since it did not, and the employee has asserted no other reason for the late appeal, the above-quoted statutes 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 March 7, 2003
tregoca2 . upr : 105 : 6  PC 731

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

James T. Flynn, Commissioner


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