KIMBERLY V RICHTER, Employee

WISCONSIN ILLINOIS SENIOR HOUSING INC, 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.

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 November 11, 2002, the last day on which a timely petition for review could have been filed was December 2, 2002. The petition for review was received December 18, 2002. It was postmarked December 17, 2002.

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 March 26, 2003
richtki . upr : 115 : 1   PC 731 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ James T. Flynn, Commissioner

A hearing on this issue was conducted by a different administrative law judge (ALJ) on February 24, 2003. At this hearing, the employee was the only witness. She testified that she wrote the first letter of appeal on Saturday, November 23, 2002; that she addressed the envelope to the Madison Hearing Office's Aberg Avenue address in Madison; that she left the letter on a counter in the duplex she shares with her mother for her mother to place in their rural mailbox in front of the duplex on Monday, November 25; and that she later asked her mother whether she had done so and her mother indicated that she had.

In a letter dated December 16, 2002; postmarked December 17, 2002; and received by the Madison hearing office on December 18, 2002, the employee stated as follows as relevant here:

I sent an appeal in about 2 1/2 weeks ago and still have not heard anything. I don't know if maybe it was sent to the right place or what happened to it. So I am again writing to appeal my hearing. I cannot afford to repay this amount and I am having a really hard time making ends meet now that I am not receiving unemployment.. Thank you for all your time. And if you do find my first appeal disregard this one. Also I know it is past the 21 days but I don't know what happened to my first letter or if you do have that one.

At hearing, the ALJ asked the employee why she sent the second letter of appeal and the employee answered, "Because I wanted to know why it was taking them so long to decide my final decision-whether I won or not. My appeal was delayed because I was waiting and waiting. Months had gone by and I hadn't heard anything."

Wisconsin Statutes § 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..

The "probable good cause" standard does not refer to the legal standard to be met for a late petition; rather, it concerns the quantum of evidence that must be presented. The legal standard for a late appeal is "reason beyond control;" that is, unless an appeal was late for a reason beyond the appellant's control, dismissal is required by the statutes. Rhodes v. Rural Mutual Insurance Co., UI Hearing No. 99402128GB (LIRC Dec. 17, 1999)

There is a rebuttable presumption that mail properly addressed and placed in the postal stream is received. See, State ex rel. Flores, 183 Wis.2d 587 (1994); Hong v. Pedros Mexican Restaurant, UI Hearing No. 98001460MD (LIRC June 29, 1998). One of the problems with the employee's case here, however, is that she doesn't show by competent evidence that her first letter of appeal was placed in the postal stream. She testified that she relied on her mother to take the letter off the counter in their duplex and place it in their personal rural mailbox, presumably to be picked up later in the day by their letter carrier. Her testimony that her mother later told her that she had done so is unsubstantiated hearsay. Although, for example, the commission, in Hong, supra, relied upon the employee's father's mailing of the letter of appeal in concluding that the appeal should be considered timely filed, the employee's father actually testified to this fact at hearing. Here, the employee's mother did not testify. In Ryan v. Dean Foods Vegetable Co., UI Hearing No. 97000882JV (LIRC Sept. 11, 1997), the commission, in concluding that an appeal was late for a reason beyond the employee/appellant's control, accepted the employee's testimony that a letter of appeal had been mailed prior to the appeal deadline, and a second letter when he learned after contacting the department that the first one had not been received. The distinction, however, is that, in Ryan, the employee testified that he had personally mailed his first letter of appeal at the Delavan post office two days before the appeal deadline. We don't have such first-hand testimony in the instant case.

Moreover, the commission finds it suspicious that the employee would send a second letter of appeal if she had actually sent a first one, particularly a second letter of appeal which seems to presume that the department did not get the first one and which is sent only two and one half weeks later. Her testimony at hearing did not relieve this suspicion. It does not make sense that, after waiting "months and months" for a decision, she would presume that her letter of appeal had not been received when only two and one half weeks had passed without a decision from the commission.

The commission concludes that the employee failed to show that her petition for commission review was filed late for a reason beyond her control.

cc: Wisconsin Illinois Senior Housing (Ripon, Wisconsin)

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