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

ANGELA R JORDAN, Employee

FOREST HILLS GOLF GCS
RSTR BNQT, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04000836LX

 


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 March 9, 2004, the last day on which a timely petition for review could have been filed was March 30, 2004. It was received March 31, 2004, when the employee faxed an appeal to the hearing office.

The employee explained that she misaddressed her appeal which would have been timely by the post-mark but was never delivered. In such circumstances, past commission decisions and court cases have held that the post-mark does not control because the letter was not correctly addressed and not delivered. (John Fusek v. LIRC and Leeman & Marko Construction, (Wis. Cir. Ct., Oconto Co., July 29, 2002)) In Fusek, as here, the employee mailed a timely petition, but the post office sent it back marked return to sender. The court agreed with the commission's inference that the post office returned the original petition because it had either been misaddressed or had improper postage, neither of which was a matter beyond the employee's control. Likewise, the employee's use of an incorrect post office box number was not a matter outside her 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 her control, within the meaning of Wis. Stat. § 108.09 (6)(a).

DECISION

The set aside decision dated April 21, 2004 is set aside and the dismissal appeal tribunal decision dated March 9, 2004 is reinstated. The petition for review is dismissed. Accordingly the initial determination remains in effect and no hearing on the merits will be held.

Dated and mailed July 30, 2004
jordaan . upr : 178 : 2   PC 731

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

If the hearing office had received the employee's explanation for her failure to appear at the original hearing before March 30, 2004, the appropriate procedure was for the ALJ to set aside the dismissal appeal tribunal decision and schedule a hearing on the failure to appear and provisionally on the merits. Despite the fact that the employee's petition was late, this procedure was followed. The ALJ assigned to hold the hearings on the failure to appear issue noticed the error shortly before the hearings and recognized that this was properly a late petition issue. He took testimony but notified the parties that he would not issue decisions. The matter was then forwarded to the commission for review. Because the ALJ never had jurisdiction to hold hearings on this matter, no decisions will be issued based on that testimony.


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uploaded 2004/08/09