DANIEL J WILDT, Employee

RICH PRODUCTS 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 department.

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 1.025 provides, in relevant part, as follows:

"Faxed petitions. Petitions for review may be filed by facsimile transmission. The date of transmission recorded by the facsimile machine shall constitute the date of filing the petition."

Wisconsin Admin. Code § LIRC 2.01 provides, in relevant part, as follows:

"(1) 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."

(2) Petitions shall be filed as follows:
. . .
(c) In the case of a petition by the department, only at the office of the commission.

The administrative law judge's decision having been dated and mailed on November 6, 2002, the last day on which a timely petition for review could have been filed was November 27, 2002. The department's petition for review was filed with the commission by facsimile transmission. The date of transmission recorded by the facsimile machine was December 2, 2002. No explanation has been provided for the lateness of this filing.

The only other copy of the petition for review which was ever received by the commission, was the original copy of the department's petition, which is contained in the hearing file. However, the commission did not receive that copy until it received the hearing file from the department, on February 12, 2003.

The commission therefore finds that the department's petition for commission review was not timely and that the department has not shown probable good cause that the reason for having failed to file the petition timely was beyond the department's control, within the meaning of Wis. Stat. § 108.09 (6)(a).

The petition for review is dismissed.

Dated and mailed April 10, 2003
wildtda . upr : 110 : 1   PC 731

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ James T. Flynn, Commissioner

As noted above, the department's petition for commission review was first filed with the commission by facsimile transmission. According to the transmission data recorded on the petition, it was transmitted from the department's Bureau of Legal Affairs on December 2, 2002. (1)   While petitions may be filed by facsimile transmission, see Wis. Admin. Code § LIRC 1.025, the date of filing in that case is the date of transmission. Since the last day on which a petition for review of the ALJ's November 6, 2002, decision could be timely filed was November 27, 2002, this copy was obviously untimely.

The hearing file does contain another, original copy of the petition for review. It is dated November 27, 2002, which of course is the deadline for the filing of a timely petition for review. However, the question is when this original copy of the petition was actually filed with the commission. (2)

The difficulty is, that this second copy of the petition which is contained in the hearing file, does not bear a date-stamp indicating when it was received. However, consideration of the usual practices of the department and the commission in respect to the filing of petitions for commission review leads the commission to believe that this copy was not actually filed with the commission until well after the deadline had passed.

In the experience of the commission, it has become the uniform practice of the department, to file petitions for review by way of facsimile transmission. Thus, it would have been inconsistent with the department's practice for it to have instead filed the petition in this case by using the mails or other delivery mechanism to provide the commission with the original copy of the petition which is now found in the hearing file. This leads the commission to believe that the original, un-date- stamped copy of the petition for review petition which is now found in the file was not a copy which was originally filed with the commission as the actual petition.

In addition, it is the uniform practice of the commission, that when a petition for review initially comes into its office (other than by facsimile transmission), it is date-stamped with the word "received" and the date of receipt. As noted above, the original copy of the petition which is now found in the hearing file bears no such date stamp. This too leads the commission to believe that the original copy of the petition which is now found in the hearing file did not come into its office as the initial petition for review.

Finally, it is also the uniform practice of the commission that when a petition for review is first filed at the offices of the commission rather than being first filed with the department, staff of the commission make a notation in the "comments" section of the computerized case-tracking records for the case, indicating that the petition was received at LIRC. There is no such notation in the "comments" section of the computerized case-tracking records for this case. This too leads the commission to believe that the original, un-date-stamped petition which is now found in the hearing file in this case was not a copy which was originally filed with the commission as the actual petition.

Instead, the commission believes that the original copy of the petition for review which is now found in the hearing file, was placed into the hearing file by the department at or around the time it was created, and that it came into the commission's office only on February 12, 2003, when the commission first received the hearing file from the department.

The commission notes, that the hearing file also contains a form entitled "Confirmation Of Petition For Commission Review Of Appeal Tribunal Decision", bearing the commission's letterhead, which recites that "[t]he attached petition for commission review was filed at the Labor & Industry Review Commission on November 27, 2002". However, this form was not prepared by the commission. It was prepared by an employee of the department, on December 18, 2002. The statement in the form to the effect that the petition was filed at the commission on November 27, 2002, is not correct.

For the reasons given above, the commission is persuaded that the petition for review filed by the department in this matter was not timely. Nothing appears in the record to indicate, that the department's failure to file the petition for review in a timely manner was for a reason beyond its control. Therefore, the commission has ordered that the petition for review be dismissed.

cc: Gregory A. Frigo, Director

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(1)( Back ) The facsimile machine log maintained by the commission confirms that the copy was received by the commission's facsimile machine on that same date.

(2)( Back ) It should be noted, that it was indeed necessary that the petition have been filed with LIRC. While Wis. Stat. § 108.09 (6)(a) provides in general that petitions may be filed with the department or LIRC, any theory that a department petition is somehow "filed" with the department as soon as it is created and signed at the department, is foreclosed by Wis. Admin. Code § LIRC 2.01, which provides that department petitions may be filed only at the office of the commission.

uploaded 2003/04/24