TRACY L MEISTER BRIGGS, Employee
MCCULLOUGH PLUMBING INC, Employer
In a decision issued on October 28, 2005, the commission dismissed the employer's (1) petition for commission review for untimely filing.
The employer, in a letter received by the commission on November 11, 2005, asserted that it did not respond to the commission's September 28 request for an explanation of its untimely petition because it did not receive this request. This request had been addressed to the employer and mailed to the employer at its address of record.
The employer further asserted to the commission that it would have explained, if it would have had the opportunity, that its petition was sent to the commission prior to the August 25, 2005, deadline by the employer's accountant, and it was only after the accountant had received no response to the petition that she contacted the commission, on or before September 26, and was instructed to fax a copy of the petition. (2)
As a result, in an order issued on November 29, 2005, the commission remanded this matter to the department to give the employer the opportunity to prove at hearing that it had filed a timely petition for commission review, and had not explained this to the commission before October 28, 2005, because it had not received the commission's September 28 request.
At the remand hearing, the employer's general manager testified. The evidence he offered to show that the employer's petition was timely filed consisted of his testimony that the employer's accountant had told him prior to the appeal deadline that she had sent the employer's petition to the commission. This is uncorroborated hearsay evidence and insufficient to sustain the employer's burden of proof.
The employer emphasized at hearing its alleged failure to receive the commission's September 28 correspondence. However, the purpose of that correspondence was to give the employer the opportunity to explain its untimely petition. The alleged failure of the employer to receive the September 28 correspondence is irrelevant at this point in these proceedings since the employer has been provided that opportunity through the administrative hearing process.
The employer also postulated in its hearing testimony that the commission must have been at fault and lost the employer's petition. The fact that this possibility exists is one of the factors which the commission takes into account in determining whether a remand hearing is appropriate. If, at this remand hearing, the employer had shown by competent, credible evidence that it had crafted and transmitted its appeal in a manner which would have reasonably assured its postmark/receipt on or before the deadline, the commission would have accepted the petition for review. However, the employer did not offer competent evidence to this effect, and, as a result, its petition for commission review should be dismissed.
Dated and mailed February 10, 2006
briggtr . upr : 115 : 1
PC 731
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
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