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

MICHAEL W KILBOURN, Employee

FORTIS INSURANCE CO, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05604896MW


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 appeal is dismissed.

Dated and mailed August 12, 2005
kilbomi . usd : 132 : 1  PC 711

/s/ James T. Flynn, Chairman

David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The employee has petitioned for review of the appeal tribunal decision that dismissed his request for hearing as being late and not for a reason beyond his control. The employee's appeal was late because his fax went down. However, if the employee was going to wait until the last moment to file his petition he should have ensured that his fax machine was properly functioning. The employee further asserts that if he had mailed the appeal it would not have been received until several days later and further, the fax was received prior to 8:00 a.m. the day after the deadline and the same person who took it off of the fax machine at that time would have gotten it if the fax had gone through the night before. The commission addressed a similar argument in Young v. Gannett Midwest Publishing, Inc., UI Dec. Hearing No. 02402441AP (LIRC August 8, 2002), and stated:

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 filed his appeal by fax and that appeal was late. The commission agrees with the ALJ that the employee did not establish that the appeal was late for a reason beyond his control.



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uploaded 2005/08/15